The first assignment of error is, that the court erred in overruling the exception to the petition, because of its omission to allege that appellant knew, or by the use of ordinary care could have known, of the incompetency of the servant from whose negligence it is alleged that appellee's injury resulted. The petition alleged, *Page 310 that the act of employing a servant was done in a careless and negligent manner, and that in consequence thereof an incompetent servant was taken into appellant's service. This was not an abstract allegation that appellant was guilty of negligence, but a specification of the act complained of and charged to have been done in a negligent manner. This, we think, was sufficient. To have alleged that appellant knew, or could have known, of the incompetency of the employe, would have been only a further definition of the negligence charged against it, and would have been a repetition, in other language, of what was involved in the averments made.
The second special exception, of the overruling of which appellant complains in its second assignment of error, was based on the absence of an allegation that appellee, while working with the fellow servant, did not know of her unfitness. The question, whether or not one suing to recover damages resulting from the negligence of another must allege and prove the exercise of proper care on his own part, has been discussed in many of the decisions of the Supreme Court. The general rule has been settled in this State, that a plaintiff is not required to negative the assumption of contributory negligence on his own part, unless the facts stated in developing his case expose him to suspicion of its existence, in which event he must clear himself.
In Railway v. Cowser, 57 Tex. 293, this principle was applied in a suit for the death of a servant caused by the negligence of his employer. But in Railway v. Crowder, 63 Tex. 502, the rule applicable to such cases was stated to be, that when the servant sues the master for the negligence of the latter, the burden is upon the plaintiff to show that he was not guilty of negligence contributing to his injury, and authorities are cited sustaining that proposition.
In Murray v. Railway, 73 Tex. 2, the opinion in the Crowder case is limited to the peculiar facts of that case, which is treated as one of the exceptional instances in which the facts shown in developing the cause of the servant's death raised the question of contributory negligence and threw upon the plaintiff the burden of removing the suspicion attaching to his conduct. That decision is construed in the same way in Brown v. Sullivan,71 Tex. 475.
In Railway v. Bennett, 76 Tex. 155, which was a suit to recover for the death of a servant caused by the negligence of the master, it is said: "We think it is now well settled, that unless the plaintiff's case discloses want of care on the part of the injured party, or exposes him to suspicion of negligence, and the defendant relies upon the defense of contributory negligence, it must be pleaded and proved. It is only when the averments of the petition show a prima facie case of negligence on the part of the injured party, that it becomes necessary that the plaintiff should negative by averment and proof the existence of such negligence." *Page 311
It thus appears that the same rule applies in cases of servants suing as governs suits by other persons, and that in neither is the plaintiff required to anticipate and negative a charge of contributory negligence on his part, when the facts which he states do not suggest that he may have been guilty of it.
The same principle applies to the question before us. If the servant, in his petition, is not required to show that the injury of which he complains was not partly the result of his own negligence, he should not be required to allege that he had not assumed the risk resulting to him by negligence of the master. The law imposes upon the master the duty of using ordinary prudence in selecting servants, and makes him liable if one of his servants receives injury because of his negligence in the performance of such duty. The risks resulting from such negligence of the master are not impliedly assumed by the servant in the contract of hiring. When he shows that the master has violated the obligation resting upon him, by negligently employing to work with him an incompetent person, through whose incompetency he has been hurt, he makes a prima facie case. If he knows of the incompetency of his coemploye before he was hurt and continues to work with him, he thereby assumes the risk, and this would afford a defense which the master might allege and prove. But it should not be presumed that the servant knew of the incompetency of his fellow, and he should not therefore be required to allege that he did not know it. The exception was properly overruled.
We think the court erred in assuming in its charge, that the fellow servant of appellee was incompetent, and in refusing the special charge asked by appellant submitting that question to the jury. While the evidence is uncontradicted, that the fellow servant, when first employed, was inexperienced and unskilled in the work to which she was put, and would have justified the jury in concluding that she continued so up to the time when plaintiff was hurt, yet such was the character of the work that the jury should have been left to determine from all of the evidence whether or not she was incompetent at the time the accident happened, so as to make it negligent, under the circumstances, for appellant to allow her to do the work. The question of competency must depend largely upon the nature of the work provided for the servant to do, and upon the danger to be apprehended and avoided in performing it.
There was error also in refusing to charge, that if plaintiff with ordinary care would have known of the incompetency of the coemploye, she could not recover. This instruction was made proper by the evidence in the case, and the charge given did not contain it.
There was no error in allowing the plaintiff to testify that the machine was not handled properly and skillfully by Miss Malcolm when plaintiff was hurt. The witness showed that she was qualified to speak as an expert, and explained the manner in which the work should have been done. *Page 312 There can be no question that the act in question was improperly done, and even if the opinion of the witness had been incompetent, no injury resulted. The other assignments are not well taken.
The judgment is reversed and the cause remanded.
Reversed and remanded.