Gulf, Colorado & Santa Fe Railway Company v. B. F. Garren, 96 Tex. 605

WILLIAMS, Associate Justice. Defendant in error was a fireman on one of the passenger engines of plaintiff in error and was hurt while attempting to get upon the engine at Saginaw, forty or fifty miles south of Gainesville, by the turning of a step, which was in a loose and dangerous condition. The loose -condition of the step had been brought to his attention earlier during the same trip at Purcell, I.

T., by the engineer, who, according to the testimony of defendant in error, said: “Here is a loose step; hand me the wrench.” Defendant in error further testified, that after trying to tighten the step, the engineer found he could not do so with the only wrench at hand, and turned it under the side of the engine, saying: “Fll have it fixed.” This is all that took place at that time. At Gainesville, which is between Purcell and Saginaw, the company had shops and car inspectors and repairers, and the defect could have been remedied in a few minutes with the proper wrench.

There is a dispute as to the character of defects in engines and cars which were usually repaired at Gainesville into the details of which we need not enter. There is evidence to the effect that when the train stopped at Gainesville there were inspectors and repairers present with whom the engineer was seen by defendant in error in conversation. Defendant in error left the engine and was absent ten or twenty minutes to get his supper and on his return the train proceeded southward.

When it reached Saginaw defendant in error descended from the engine 'to perform a duty and in attempting to ascend again was hurt as stated. One of his contentions is that he believed the step had been fixed at Gaines-ville and was in proper position and condition for use. The evidence was not conclusive on this point, but was such as to make it necessary for the jury to determine whether or not he in fact acted on this belief, and whether or not he was justified by the circumstances in so believing and acting. The charge of the court, among other things, contained the following: “6.

Thp servant by entering the service of the master assumes all the ordinary risk incident to the business but not those arising from the master’s neglect if the master should be guilty of negligence.

It is the duty of the master to exercise ordinary care to furnish the servant machinery and appliances, and the servant has the right to rely upon the presumption that the master has done his duty in this regard; but if he learns that the appliances furnished are defective he assumes the risk incident to that condition of affairs, unless the master is informed of such defects and promises the servant to remedy the defects if any.

In this latter event, so long as the servant has reasonable grounds to expect and does expect that the master will fulfill his promise, the servant does not by continuing in the employment assume the additional risk arising from the master’s neglect.

If the servant then be injured, he may recover, provided that it be found that a man of ordinary prudence under all the circumstances would have encountered the danger by continuing in the service, and if the master has promised to repair such defect, if any, the servant may presume that the master has complied with the promise, and the servant is not required to inspect the appliance before using it to ascertain whether the repairs have been made, unless there is something in the condition of the appliance which would cause an ordinarily prudent person to make an examination of said machinery. “7.

If you find from the evidence that it was the duty of the engineer on said engine upon which the plaintiff was working at the time of his injury to have any defects on said engine, if there were, repaired, then the promise by said engineer to make repairs of said defects would be the promise of the defendant.” ' This relieved the servant from the effect of an assumption of risk, arising from knowledge of the defect, by force of a promise of the master to repair, assuming that there was evidence of such a promise as would give application to this doctrine. The remark of the engineer can not be so construed.

The true doctrine relates only to promises or assurances made by the master to the servant, upon discovery of defects in tools or appliances, to remove the objection of the servant to using them and to induce him to continue in the service. • Lewis v. New York & N. E. Railway Co., 10 Law. Rep. Ann., 513; Sweeney v. Envelope Co., 101 N. Y., 520; Bodwell v. Manufacturing Co., 47 Atl. Rep., 613. There is nothing of the nature of such a promise in the casual remark of the engineer to the defendant in error, and the doctrine laid down in the case of Texas & New Orleans Railway Company v.

Bingle, 91 Texas, 287, and like cases, has no application. There being no such facts, the question whether or not a promise otherwise filling the requirements of the rule, made by the engineer, who had no power to employ and discharge defendant or other servants, would be treated as that of the master, does not arise. In the second appeal of the Ringle case, there was an expression in the opinion of the Court of Civil Appeals concerning the effect of the promise of the engineer in that case which probably led the trial court in this case to treat the promise of the engineer as that of the company.

The facts of that case relating to the question, which are not fully stated in any of the reports, were very different from those here in question; and the point now made was not passed on by this court in refusing a writ of error and probably not by the Court of Civil Appeals.

As the question is not now involved, we deem it unnecessary to point out the differences between the two cases, or to pursue the subject further than to say that we do not regard the decision referred to as authority for the proposition that a promise to a fireman made by an engineer in charge of a train, with no power of employing and discharging servants, is to be imputed to the master. It is not to be inferred that the statement of the engineer is not admissible as evidence upon the true issues in the case.

Although a servant may at one time have known of the existence of a defect, he may not know of it at the time he undertakes to use the appliance, and circumstances may justify him in believing that the defective condition 'has been remedied.

Some of the evidence tended to raise that question, and to it the statement by the engineer that he would have the step fixed was relevant; and the circumstances taken together raised the question whether or not the defendant in error, when he used the step, knew or should have ¡mown that it was still in the dangerous condition,,or believed that it had been repaired and was justified in such belief; and whether or not he was so justified would depend upon the inquiry whether he judged and acted upon the facts with ordinary prudence. Northern P. Railway Co. v. Babcock, 154 U.

S., 200. -It was contended in the argument that this view of the law was embodied in the charge and that, under it, the facts justified the recovery. It may be true that the charge authorized a recovery upon' this theory, but it also instructed as to the effect of a promise by the, master, giving to it the weight indicated by the passages which we have quoted, and it can not be said that those instructions did not influence the verdict.

Conflicting theories were thus embodied in the charge, under one of which the servant must have been ignorant of the condition of the step when he used it, while under the other he may have known it, but because of the promise, is not held to an assumption of the risk.

During the trial defendant in error was cross-examined concerning statements which he had made of the facts of the accident in which he did not mention the so-called promise of the engineer; and, also, the fact was developed that in his original petition he had made no allegation of that fact, the position of counsel for plaintiff in error being that the evidence of such promise was fabricated as an afterthought. In rebuttal, the attorney who drew the petition was allowed to state that his client, in his statement of the ease, did include the promise as he stated it on the stand.

One of the assignments questions the ruling admitting this testimony. In the case of Insurance Co. v. Eastman, 95 Texas, 34, this court had occasion to examine the question as to the admissibility of statements by a party to the suit corroborative of his evidence given on the stand, when such evidence has been contradicted by proof of contrary statements made elsewhere, and the rules generally obtaining were stated in the opinion of Chief Justice Gaines.

How far the rules laid down might be applicable, had there been no attempt to inferentially contradict the witness by the absence of mention in the petition of the fact in question, we are not called upon to consider. The evidence objected to tended to show that such omission was not that of the defendant in error, but of his counsel, and to rebut the inference contended for, and was therefore admissible.

The question as to the propriety of the refusal of the court to permit counsel for plaintiff in error, on re-examination of the witness Paxton, to draw from bim an . explanation of his answer given in cross-examination, will not probably arise again; but, as the record shows the matter, we think the question should have been allowed. It appears from the statement of the facts that there was occasion for the explanation asked and it does not appear that there was an effort at undue repetition of the same statement. Reversed and, remanded.