Houston East & West Texas Railway Company v. Coleman B. De Walt, 96 Tex. 121

WILLIAMS, Associate Justice. 1. It is not true that servants of railway companies are held bound by the law under all circumstances to obey the orders of their superiors. Obedience to an order may involve personal risk so great and so obvious that no prudent man should take it. The master or his representative has no right to give nor is the servant bound to obey such an order. Hor is it necessarily true that, if work which the master orders the servant to do is extra hazardous, the master is responsible to the servant for the consequence of obedience.

If the work be of so dangerous a character as we have just instanced, the servant, if he takes the risk of doing it, will not be heard to complain in the courts. The statement of the rule in the special charge was in an abstract and comprehensive form, without a qualification which was essential to its accuracy. A jury following it according to its terms would be bound to conclude that, if the servant were injured as a consequence of his obedience of an order of his superior, the master would be responsible, in law, for the damage inflicted, whatever might be the character and degree of the danger incurred.

The defense involved the contention that the order to seal up the car only meant that the plaintiff should do so while the ear was on the side track, and that, in following it upon the main track and there exposing himself to increased perils, plaintiff went beyond the terms of the order. If this is true and plaintiff was not hurt while acting in obedience to the agent’s order, the special instruction had no application.

But the plaintiff’s theory, reflected in the instruction, evidently was that the order required the work upon the car, whether at one place or the other, and was being executed when the injury occurred. This was a question for the jury, and, in case they sustained this contention of plaintiff, the further question arose for their decision, whether or not the situation involved such risk that plaintiff as a man of ordinary prudence ought not, under all the circumstances, including the order, to have undertaken to do the work as he did.

The general charge and special charges given for defendant submitted this question as one of negligence vel non, but special charge No. 8, applied in this connection, virtually instructed without qualification,” that, if the work was extra hazardous and plaintiff in doing it was obeying the order, defendant would be responsible. This was, in effect, to tell the jury that the order, if obedience to it brought about the injury, removed any question as to plaintiff’s negligence as submitted in other instructions.

At least the jury might naturally thus reconcile the differing instructions, and such instructions, if not thus reconciled, would be in such conflict as to confuse the jury. In either view there was error which the appellate courts can not say was harmless. We answer the first question and the first branch of the second question in the negative.- Assuming that the question of reversal or not depends alone upon the instructions, the pleadings and evidence stated, we answer the second branch of the second question in the affirmative. 2.

A defendant has the right to plead inconsistent defenses, and where in one part of an answer he denies or otherwise puts in issue a fact and in another part alleges its existence, the answer can not be taken to be an admission of such fact. Duncan v. Magette, 25 Texas, 246. Many other rulings of this court affirming this proposition might be cited. But this is true, not because admissions in pleading are not admissible against the party making them, but because a plea, in one part denying a fact and in another part affirming it, can not, under our statute, be treated as an admission of the fact.

Abandoned pleadings when offered in evidence should doubtless be construed in the same way, and not be admitted as conceding a fact both affirmed and denied. But this rule has nothing to do with the admissibility of pleadings in evidence as tending to show a fact which they distinctly allege. If a fact be admitted in the pleadings on which the case is tried, it is, in general, assumed without other evidence to be conclusively established for the purposes of the trial. Ogden v. Bosse, 86 Texas, 344.

The same rule can not be applied to pleadings superseded by amendment, but it does not follow that distinct admissions in them of particular facts can not be used as evidence against the party who filed them. The admission of a party thus made is admissible against him under the rule of evidence which allows admissions against interest. Of course they are open to explanation or contradiction like other admissions. It is sometimes the fact that allegations are made by the attorney drawing pleadings upon a misunderstanding of the facts and not by authority of the party, and this of course- may be shown.

All that appears here as to this is that the superseded answer contained the allegation offered in evidence, and we think that pleadings which have been filed in court in behalf of a party should be, prima facie at least, regarded as authorized by him and admissible against him, where they admit facts relevant to the issue. This court has recently had occasion to review this subject and to point out that the question under consideration was not decided in Coats v. Elliott, 23 Texas, 606, the expressions in which have given rise to most of the difference of opinion that has arisen in this State.

First National Bank v. Watson, 95 Texas, 351. The case of Barrett v. Featherstone, 89 Texas, 567, is one in which the question was fully considered in the majority and dissenting opinions of the Court of Civil Appeals of the Second District, and in which this court held with the majority affirming the admissibility of the evidence. The plea in that case was signed and sworn to by the party himself, and this made it certain that the admission was his own and perhaps added to its. weight as evidence, but its admissibility did not depend on those circumstances.

The certificate shows only that the fact in question was alleged in the plea offered in evidence, by which we understand that such fact was admitted and not otherwise put in issue. Such being the case the plea was admissible.