The majority opinion sufficiently states the pleadings and sets out the evidence. It is upon Hall's testimony that appellants seek a recovery. The record shows that French was about 20 years old, had been in appellee's employ for several months, working as Hall's helper, in work similar to that which was being done the day he met his death. The work, the kind of work, the pulley, the hook on the pulley, and the line used in going from the ground to the place of work and in returning thereto are described in Hall's testimony. All that is known of how young French met his death is told by Hall in these words: "We began work at about 7:30 the morning that French was injured. I don't know that we were right there when we began. We had worked from then to 15 minutes to 12, and that was the time of day when he fell. French had a watch and pulled it out and said it was 15 minutes to 12 when he started down. I don't know whether it is customary for men working in my position to use that hand line for descending from the platform to the ground; I have used it myself. When I was a distance away from a pole and it was hard to get to it, I always used it myself. I had been down to the ground after I had ascended to the platform that morning. When I went down, I went down on the hand line. Young French had been down from the platform that morning. He, too, went down the hand line. As near as I can recollect, French met his death in this way: I told him to go down and test the cable box with me, and he started down, *Page 410 and was getting my cable to test with when we got there, and I went on and opened up my cable, and I heard the block and tackle and I saw him falling. That is all I know of how it happened. I did not have my back to him when he started down the hand line. I had my face to him, but was not looking at him. I was looking at the cable. When he started down the hand line he had got off the platform. We were on the platform when I told him to go down to the ground. He started down by the hand line. When I looked the hand line was loose from the messenger wire and was descending to the ground with him."
In T. N. O. Ry. Co. v. Crowder, 63 Tex. 503, our Supreme Court announced with approval the rule that: "The servant seeking, to recover for an injury takes the burden upon himself of establishing negligence on the part of the master, and due care on his own part." Under this rule it is there held that the plaintiff is required to show the facts surrounding and leading to the injury, and if, from them, the jury can reasonably infer negligence in the employer contributing to the injury, and the exercise of due care by plaintiff, then he is entitled to recover. If the evidence does not show how the accident occurred by which he was injured, by showing his own relation to it and other surrounding facts, some or all of which may appear from the character of the accident itself, he has not gone as far as the law requires him to go to entitle him to recover. That because the action to recover is prosecuted by a relation of the injured party does not alter the rule. The Crowder Case was again on appeal (see 76 Tex. 499, 13 S.W. 381), and Judge Hobby, rendering the opinion, said: "With respect to the facts in this case, upon a former appeal it was said by Chief Justice Stayton that: `The evidence does not show what was the action of the deceased at the time he was injured, nor so develop the facts as to show that he was in the exercise of due care;' and again, that: `The true rule in this class of cases is that the servant seeking to recover for an injury takes the burden upon himself of establishing negligence on the part of the master, and due care on his own part.' * * * The only difference at all material between the testimony upon the previous appeals of this cause and that contained in the record before us is that a witness, Eli Burge, for the first time testified upon the last trial as follows: `I did not see how George Cohn was hurt. When I saw him he was sitting on the main track on the end of a tie; he was hurt on the south track. To the best of my judgment it was between 10 and 12 minutes after he was hurt before I saw him. When I got to him I found him sitting on a tie about four or five feet from where he was hurt. I suppose it was about two or three feet from one tie to another between the tracks. The rails of the two tracks were about four feet apart. His leg was run over and cut off above the ankle. It was his left leg. I saw signs indicating how he was hurt; saw blood on the rail and tie and on the flange of the wheel of a car opposite to him, and I saw a foot track right down alongside of this bloody tie, in the angle between this tie and the inside of the rail. It seemed to me it was where Cohn put his foot down inside the track between the tie and rail. The track of the railway was unfilled at this point; the top of the tie was from eight to nine inches above the surface of the ground, and the top of the rail is five inches above the tie. There was blood on the rail and on the tie above the foot track.' No reasonable construction of this testimony as to `the facts surrounding and leading to the accident' will authorize the conclusion or inference that the negligence of the appellant contributed to the injury, and that there was due care exercised on the part of the injured party, which, under the rule laid down in this case heretofore, was held to be essential for the appellees to establish to entitle her to a recovery. See Railway v. Crowder, 63 Tex. 504, 505. Under the facts of this case as now presented, we think the charge requested instructing the jury to find for the defendant should have been given; and, if upon another trial the evidence is of the same character as that now before us, a charge such as requested in this case should be given. Because it was not given, we think the judgment should be reversed and the cause remanded."
I am of opinion, as said in the Crowder Case, 76 Tex., supra, that "no reasonable construction of this testimony as to the facts surrounding and leading to the accident will authorize the conclusion or inference that the negligence of the appellant contributed to the injury, and that there was due care exercised on the part of the injured party." Hall says, as heretofore quoted: "As near as I can recollect, French met his death in this way: I told him to go down and test the cable box with me, and he started down (and was getting my cable to test with when we got there) and I went on and opened up my cable, and I heard the block and tackle and I saw him falling. That is all I know of how it happened. I did not have my back to him when he started down the hand line. I had my face to him, but was not looking at him. I was looking at the cable. When he started down the hand line he had got off the platform. We were on the platform when I told him to go down to the ground. He started down by the hand line. When I looked the hand line was loose from the messenger wire and was descending to the ground with him."
It is not shown anywhere that the absence of any safety device was the cause of the hook getting off of the messenger wire. Common experience teaches that the weight upon the hook would necessarily cause the hook to stay fastened to the messenger wire, *Page 411 instead of becoming loosened. Under the above testimony, it would be mere surmise to say that the accident was caused because the hook on the pulley was not equipped with some safety device. If, however, by a surmise it could be said that the absence of the safety device did contribute to the injury, yet there is an entire absence of testimony upon which even a surmise can be predicated, and that is, that the deceased on his part exercised due care. From my analysis of the evidence I fail to find any, by which it is shown that the deceased did exercise due care. I am therefore of opinion that this cause should be affirmed upon the two propositions, viz., that plaintiff failed in proving negligence on the part of the defendant, and that the deceased exercised due care. The burden was upon plaintiff in both instances. The mere fact that there was an accident or that an injury occurred is not proof of negligence, or that deceased exercised due care.
The majority opinion has determined also that the evidence is sufficient to raise an issue of fact as to whether the hook which fastened to the messenger wire should have been equipped with a safety device. I fail to find evidence of negligence on the part of defendant in using the hook. There is no evidence that the hook was unsafe or defective, that it broke or gave way, or that any other kind than the one in use was used by others engaged in similar business. It would seem that in this case the doctrine that the master cannot be charged with a breach of the duties owed to his servants, simply on the ground that a safer instrumentality than that from which the injury might have resulted was available and might have been adopted by him. Plaintiff's right for recovery seems to be based wholly upon the theory that the defendant could have had a safety device on the hook, yet it is not shown that such device would be practicable, or that it is a proper device to use in the kind of work which was being done when the accident occurred. For the reasons indicated, I respectfully dissent in the views of the majority, and am of opinion that this cause should be in all respects affirmed.