Laura E. Stevenson, as administratrix and personal representative of the estate of Grover C. Stevenson, deceased, brought this suit against the Southern Pacific Company for damages for the negligent death of said Grover C. Stevenson.
For cause of action alleged: That deceased was employed as rear brakeman on freight train running between Lordsburg, N.M., and El Paso, Tex. That while the train was en route Fred Wilson, front brakeman, while attempting to pass over to the Front of the train, discovered four Mexican trespassers riding in a gondola, or flat car. That when Wilson attempted to pass them they flourished knives and pistols and refused to permit him to pass. Whereupon he (Wilson) returned to the caboose, where deceased was riding, and requested him to go with him to the car where the trespassers were and assist him in passing over the train.
That under the rules and customs of defendant it was the duty of Wilson, as head brakeman, to inform deceased of the threats so made by the trespassers, and of the dangers incident to passing said car, which he failed to do, but requested and permitted deceased to accompany him to the front of the train and by said trespassers whilst he was wholly ignorant of any danger, and of the; fact that the trespassers were armed, etc. That if he had been so informed he would have refrained from assisting. That the failure to notify and warn deceased before he went to the car was negligence, by reason of which deceased was permitted, in the performance of his duty, to enter a place of danger, and as a consequence he was shot and killed. There is another theory of negligence charged, but the case was tried and submitted upon the theory that it was Wilson's duty to warn deceased that the trespassers were armed with pistols and knives, and actionable negligence for him to fail to so warn.
Defendant answered by general demurrer and general denial, and pleaded that decedent's death was due to risks and dangers assumed by him, for which the defendant was not liable, and further that decedent's death was proximately, wholly, and solely caused by his own negligence.
The case was tried before a Jury and resulted in a verdict and judgment for plaintiff for $5,000, from which this appeal.
By various assignments and propositions it is urged that the court erred in refusing requested peremptory instruction for defendant.
Witness Wilson, who testified by deposition, being the only witness present who testified in the case, detailed the facts as follows:
"I knew Grover C. Stevenson during his lifetime. On the 18th of September, 1916, he was rear brakeman or flagman, and I was front brakeman, on a freight train, and on our run from Lordsburg, N.M., to El Paso, Tex. It was the duty of the front brakeman to get off of the engine near the apex of the Hawkins Hill and inspect the equipment to see if everything was all right, and on this particular occasion that was what I did. I told the conductor that I had inspected the train and that everything was all right. The conductor then told me that we would meet No. 9 at Wilna, and for me to go over the train to the front end and head in on the siding at Wilna. It was my duty to do that without orders from the conductor. When I was advised that we would meet No. 9, it was my duty to go over the train to the engine and put the train in on the siding. I told the conductor I would go over and put the train in on the siding at Wilna, and started for that purpose. I *Page 152 would say we were about 10 or 12 miles out of Wilna at that time, and we had about 20 minutes to make it in to the siding. About five car lengths from the caboose I met four Mexican tramps. They were stealing a ride on the freight train, and they said to me that I could not pass them, and I told them I desired to pass for the purpose of going on the siding. They told me they would not let me go by. They cursed me and abused me. I told them I didn't care to put them off; that I only wanted to go over to the front end of the train, and I started down the ladder of a box car that was next to the gondola car, and when I started down they rose up and came towards me. One of them had a large knife, and two had large pistols and drew them out and flourished them at me, and told me I could not come down. It seemed that they could not understand what I was saying, and they would answer me back in Spanish. They would not agree to let me pass; I could tell that more from their actions than I could from the words spoken. They cocked their pistols and told me `vamose'; and they used some curse words, and one of them pointed the pistol towards me and said `vamose.' I started down the ladder again and told them I didn't want to hurt them; that I had to go over the train, as it was getting almost time to meet No. 9. There was one of the Mexicans who talked pretty fair English. I then climbed back upon the car and left them and went back to the caboose. I went back to the caboose to get the rear brakeman, who was Mr. Stevenson, to go over the train to where the Mexicans were and assist me.
"When I got back to the caboose, I found the conductor riding in the cupola where the rear brakeman usually rides. I told Stevenson that there were some tramps up there in a gondola car and they wouldn't let me go by. I told him they couldn't talk English and I couldn't talk Spanish, and for that reason we couldn't understand each other very well, and I asked him to go with me and help me get by them. No, I didn't tell Stevenson anything about them having knives and pistols, and that they threatened to kill me if I attempted to go by them. I could not talk Spanish, but Stevenson talked Spanish very fluently, and the men all talked Spanish but one fellow, who was taking very little part in the matter, and who could talk a little English. Stevenson said, `Yes, you know me kid, I will go and assist you,' and got up and put on his coat, and we started out to go over to the front end and get by the Mexicans and head in No. 9. He started, but got no further than the gondola car, when he was killed. * * * As stated, they did not appear to be angry after Stevenson talked with them. Stevenson then started down the ladder, and I thought put his foot on the top of the gondola car, and about that time I saw a pistol in the hands of one of the Mexicans. That was the first pistol or knife that I saw after Stevenson and I got there. As stated, I thought Stevenson put his foot on the edge of the gondola car as if to step over, and a pistol fired. I thought at that time that Stevenson fired, but I learned later that a Mexican shot Stevenson. As stated, Stevenson started down into the gondola car and one of the Mexicans shot him. He either jumped into the car or fell; I could not tell which. I then jumped into the car myself, and, when I lit into the car, the Mexicans ran. Then Stevenson said to me, `I am shot,' and took my hand and showed me where the blood was running. I then went to work to stop the train. I first went to Stevenson's body and felt for the pistol and couldn't find it, but later found it laying on the floor of the car. There was one chamber empty, which had no cartridge at all in it. Stevenson's pistol had not been shot."
The major portion of the cross-examination is about statements made by the witness at other times and written down and signed by him, for the purpose of contradiction or impeachment. The jury having found, in effect, that the evidence given upon the trial was true we only quote the statements made upon the trial as true:
"Yes, when the Mexicans warned Stevenson and myself not to come down into the gondola car, there was something said by Stevenson as he was going down into the car, or just after he fell, to the effect, `to hell with you.' I was a little bit frightened at that time and am not able to give all the details of that transaction correctly, because it is not clear in my mind as to just how it was said. I would say it is true that Stevenson got his gun before leaving the caboose with me to go over the train to where the Mexicans were. While I did not see him get his gun or put it on, he had it when he was killed, and I know he carried it out of the caboose for that reason. My judgment is that he had it on when I went back, because he always carried his pistol."
It is further in evidence that, when the front brakeman should call upon the rear brakeman to assist in such matters, it became the duty of the rear brakeman to go along and help, and this is not controverted. The plaintiff was engaged in interstate commerce.
The above constitutes all of the facts: acts of omission and commission, upon which the merits of this case depend. Appellee asks an affirmance, and appellant urges that the court should have instructed a verdict for it. Many propositions are presented of which we select the following as the ones which raise the test questions in the case before this court:
(1) It is charged that there is no evidence in the case that Wilson violated any duty to deceased which was within the scope of his employment.
(2) That there is no evidence that deceased would have acted differently had he been informed that the Mexican trespassers were armed, but in fact the record shows that he would have acted as he did whether warned or not.
(3) Because the evidence shows he assumed the risk as a matter of law.
(4) Stevenson having been informed that the Mexicans were in the car, and had threatened him (Wilson), and would not let him pass, whereupon he armed himself, and after being warned "not to come down" attempted to cross the car, he chose the *Page 153 dangerous instead of a safe way of performing his work; therefore, assumed the risk.
(5) When he attempted to cross the car after being warned by the Mexicans not to do so, he was guilty of negligence which was the sole and proximate cause of his death.
The only duty due or owing by the company to deceased charged in this action is that by reason of the custom so to do, when the head brakeman, Wilson, called upon deceased, then the rear brakeman, to assist him in going through or past the trespassers, it became the deceased's duty to go, and that thereupon it became the duty of Wilson, who thereby became vice principal to deceased, to warn deceased of the extraordinary hazard, to wit, the fact that the trespassers were armed, and of the threats made upon his life and the dangers incident to approaching the car. As a general rule, it is not the duty of the employer to warn the employe of a danger incident to the service in which he is to engage. Railway Co. v. Hester, 64 Tex. 401; M. P. Ry. Co. v. Callbreath, 66 Tex. 526,1 S.W. 622. However —
"When there are hazards incident to an occupation, unknown to the servant, which the master knows or ought to know, it is his duty to warn the servant of them, * * * and this rule applies even where the danger or hazard is patent, if through youth, inexperience, or other cause the servant is incompetent to fully understand the nature and extent of the hazard." Railway Co. v. Watts, 64 Tex. 568.
The question here is: Did the master, through Wilson, know, or should it have known, of the real danger, to wit, that the trespassers would likely assault and take deceased's life? There is nothing in the record to indicate that Wilson knew anything of the trespassers not known by Stevenson, except the bare fact that they were armed.
Wilson told him that the Mexicans would not let him pass. He (Wilson), in Stevenson's presence, got his pistol and proceeded back along the train. Stevenson with his pistol proceeded to approach and to go down into the car where the trespassers were, and in the face of the warning given by them to him not to come down into the car, in the face of the facts it does not seem possible that Stevenson could still claim to be so ignorant of the dangers incident to going into the car as to call for further warning from the employer, if in fact the duty ever arose, for that a brakeman would be shot by a trespasser upon his train because he, the brakeman, insisted on going through his train, seems to be too remote a consequence to have been contemplated by Wilson representing the employer, or any other person. Wilson could not know of the ultimate result, and the facts are insufficient to charge him with the duty of apprehending such danger.
There is no evidence in this record that Stevenson did not know the further fact that the Mexicans were armed, and appellant's suggestion that there is no evidence that Stevenson would have refrained from going into the car if he had the knowledge is equally true; but if we are correct in the holding that the evidence fails to establish that the duty to warn devolved upon appellant under the rules of law applicable, and that therefore there was no breach of duty constituting actionable negligence, the question of assumed risk has no place in the case. Magnolia Petroleum Co. v. Ray, 187 S.W. 1085.
For the reasons assigned, the cause is reversed and remanded.