The ground of negligence set up in plaintiff's petition as the basis of the recovery herein sought is that plaintiff was, "at the time of the casualty herein complained of, engaged with other employés of defendant, in the ordinary discharge of the duties of their service, in the operation of a hand or push car for defendant, and while they were engaged in moving such push car from the rails of one of defendant's tracks to another track, as incidental to and as a part of its operation, one of said employés of defendant (one Gibson) did, without warning to plaintiff, so negligently conduct himself in handling the end or part of the car he was holding as to cause or permit it to fall upon or be thrown against plaintiff's leg and to strike the thigh thereof a few inches above the knee with great force and violence, whereby," etc., setting up the injuries complained of. Defendant answered by (a) general denial, (b) contributory negligence, (c) that the act of negligence complained of was that of a fellow servant, for which defendant was not liable, (d) assumed risk, (e) unavoidable accident.
The plea of assumed risk is as follows: And for further plea and answer the defendant avers that plaintiff ought not to have and recover anything herein for the reason that his alleged injuries were the result of risks and dangers ordinarily incident to the service in which he was *Page 598 employed, and of risks and dangers and conditions which were open to his observation and known to him, and which would necessarily have been known to him by the exercise of ordinary prudence in the performance of his duties, and of this defendant puts itself upon the country and prays judgment of the court."
The special charge, the refusal of which it is held constitutes reversible error, reads: "You are instructed that the plaintiff, in entering and remaining in the service of the defendant railroad company, assumed the risk of dangers and injuries which were ordinarily incident to the service which he engaged to perform, and also the conditions and dangers that were open to his observation and were actually known to him, or would necessarily have been known to him by the exercise of ordinary care in connection with the performance of his duties. Therefore, if you find from the evidence that the plaintiff's alleged injuries were the result of risks or dangers that were ordinarily incident to the service, or risks and dangers which were known to the plaintiff, or would necessarily have been known to him before his injury by the exercise of ordinary care in connection with and consistently with the performance of his duties in the service, then and in such event you will return your verdict in favor of the defendant railroad company."
I am of the opinion that the general charge of the court amply and fully protected defendant in the only right it could possibly claim under the law of assumed risk, as applied to the facts disclosed by the record here.
It is held in the majority opinion that, if Gibson's stumble or misstep was not due to negligence, it was then an ordinary risk incident to the service in which he was employed, and therefore assumed by plaintiff; and, such being the case, the charge upon assumed risk should have been given.
The rule as to the assumption of "ordinary risks" is not of any practical importance; in fact, the rule, as it is usually stated, that a servant assumes all of the ordinary risks incident to the service in which he is employed is misleading, since the theory upon which the master is held to be not liable is that he was not negligent, and in such cases, of course, no recovery can be had, independent of any question as to the assumption of risk. It would therefore seem that, if the master is held to be negligent, the question of assumption of "ordinary risks" cannot arise as a material point; neither can it arise as a material point if the master is held to be not negligent. The master's liability depends wholly upon his own negligence or that of his servant; this must be established affirmatively in every case. If he has performed his duty, there is no negligence and he is not liable; and in such case it is not of the slightest importance what risk or perils the servant may have assumed. If there is negligence of the master or of the servant, then the master is liable because the servant does not assume as an "ordinary risk" such negligence; therefore, in this case, too, it is not of the slightest practical importance what risk or perils the servant has assumed. 2 Bailey, Personal Injuries (2d Ed.) par. 369; Bradburn v. Railway Co., 134 Mich. 575, 96 N.W. 929. Hence we see that, as applied to "ordinary risks" incident to the service in which the servant is employed, the doctrine of assumed risk eo nomine has no practical importance, since the question of liability, in its last analysis, depends upon the issue of negligence vel non. If the master or his servant was negligent, liability attaches. If there was no negligence, there is no liability.
Now, in the instant case, this controlling issue of negligence vel non upon Gibson's part in stumbling was clearly and decisively submitted, and therefore, from a practical standpoint, defendant had adequately protected every right which he could possibly claim upon the theory that the misstep or stumble was accidental and an "ordinary risk" incident to the service in which appellee was engaged.
The jury was instructed: "Now, if you believe from the evidence that plaintiff was injured substantially in the manner alleged, and that at the time he and coemployés were engaged in moving the push car in question from one track to another as a part of its operation, and that while so engaged they were in the employment of defendant and in the ordinary discharge of the duties of their service for it, and that one of such coemployés (Gibson) did, without warning to plaintiff, handle the end or part of the car he was holding so as to cause or permit it to fall upon or be thrown against and to strike plaintiff's thigh, and that in so doing, if he did, he failed to exercise such care as an ordinarily prudent person would have exercised under the same or similar circumstances, and that such failure on his part, if he did so fail, was a proximate cause, as before defined, of alleged injuries to plaintiff, if any, then let the verdict be for the plaintiff, unless you find for defendant under some other instruction or instructions of the court." Thus we see that, in affirmatively presenting the plaintiff's theory of the case, the issue of negligence vel non was distinctly submitted and an affirmative finding required thereon before the jury's verdict could be in his favor.
Again the jury was instructed upon the defendant's theory of the case: "If, from the evidence, you believe that Gibson, while assisting in the moving of the car, stumbled in a way to cause the car to fall upon or be thrown against plaintiff's thigh, but that 1 such was done without anywant of ordinary care on Gibson's part, or you believe that *Page 599 Gibson, in handling the car in question as you may find was done by him, would not reasonably have anticipated injury to plaintiff as alleged, or some like injury, as a natural and probable consequence, then plaintiff's alleged injuries, if any, would be deemed the result of a risk ordinarily incident to the service in which he was employed, and an unavoidable accident, and, if you so find, let the verdict be for defendant" Thus we see again that the issue of negligence is again clearly submitted, with instructions to find in defendant's favor if the stumble was without negligence on Gibson's part.
As we have seen, the defendant's plea of assumed risk and the requested charge is merely an abstract statement of the law of assumed risk as applied to ordinary risks incident to the service. If defendant had pleaded, and the charge had affirmatively presented, the issue of assumed risk, based upon the theory that the stumble was accidental, then, under the authority of that line of cases of which Railway Co. v. McGlamory,89 Tex. 638, 35 S.W. 1058, is the leading one, it would have perhaps been proper to have given the same. Even in such case I am not prepared to concede that its refusal would have been reversible error in view of the presentation of the issues to the jury in the paragraphs of the charge above quoted. But I am firmly impressed with the idea that the refusal of the special charge in the form here requested was certainly not reversible error; that this is true under the prior rules and decisions of our courts (Railway Co. v. Zapp, 49 S.W. 673), and it is especially true in view of the recent rule (62a) adopted by the Supreme Court for the government of the Courts of Civil Appeals (149 S.W. x). Certainly the refusal of that charge was not reasonably calculated to cause and probably did not cause, the rendition of an improper judgment, and, at all events, under that rule its refusal should not be treated as reversible error.
The Brisco Case cited in the majority opinion has no bearing whatever upon the question under consideration, and the resume of the case there made is incomplete, erroneous, and unintentionally misleading. In that case certain work had been usually and customarily performed in anegligent manner. Plaintiff was experienced in the work and knew or was charged with knowledge that the same was done in such negligent manner and participated therein. A special charge was requested by defendant as follows: "If you believe from the evidence that plaintiff was injured at the time and place and in the manner charged in the petition, and if you further believe that plaintiff's said injuries were caused by the rapid movement of the hand car from the toolhouse to the railway track at a point on the railway track where there was a switch and a guard rail or rails, and if you further believe that it was negligence, as that term has been defined to you, in the section hands to move the said hand car from the toolhouse to the railway track at that place with the speed it was moved, and if you further believe from the evidence that at the time the plaintiff was injured he was an experienced section hand and knew, or might have known by the use of ordinary care, the risk and danger of moving the said hand car in the manner it was moved, and if you further believe that the said hand car at that time was moved by the section hands in the manner which theretofore had been usual and customary with them, and if you believe that plaintiff at the time knew the ordinary manner and custom of the section hands theretofore in moving the said hand car from the toolhouse to the railway track, then plaintiff assumed all risk to himself of injuries by reason of the manner of moving the said car at that place, and defendant is not liable to plaintiff for any injuries received by him, and you will find for the defendant." The members of the Court of Civil Appeals being divided as to whether or not, under the facts detailed, such a charge should have been given, and being in doubt as to the correct application of the doctrine of assumed risk, certified two questions to the Supreme Court as follows:
"Question 1. In view of the evidence and the charge of the court, was the defendant entitled to the requested charge, and should it have been given?
"Question 2. Does an employé connected with a particular work assume the risk of dangers arising from the usual and customary negligent manner of the doing of such work by his coemployés, when he is experienced in such work and knows, or must necessarily have known, of the usual and customary manner of doing such work?"
The Supreme Court answered the questions as follows:
"The court erred in not giving the charge set out in the statement submitted. There was evidence from which the jury might have found that the hand car was uniformly placed upon the track by giving it a hard push to get it over the first rail of the track. This was the method of doing the work, and they might also have found that Brisco was daily engaged in assisting them put the car on the track as he was engaged on that occasion, and knew of the manner in which his fellow servants uniformly performed that work. The jury might have found that the car on this occasion was shoved as it usually was and with no more force. The evidence is conflicting upon these issues, but the jury might have concluded that Brisco assumed the risk of putting the car on the track in the manner in which it was done. Texas P. Ry. Co. v. Bradford,66 Tex. 732, 2 S.W. 595, 59 Am.Rep. 639; Lynch v. Boston A. Ry. Co., 159 Mass. 536, 34 N.E. 1072; Hunt *Page 600 v. Kile, 98 F. 49, 38 C.C.A. 641; Red River Line v. Cheatham, 60 F. 517, 9 C.C.A. 124; Gulf, C. S. F. Ry. Co. v. Harriett, 80 Tex. 83,15 S.W. 556.
"One who is engaged in the performance of work in a manner well known to him must be held to assume the risks of dangers which are involved in the performance of the work in that way. There was no conflict in the testimony as to the fact that Brisco had been engaged in performing this character of work (that is, putting the car upon the track for some time); that he was experienced and had full knowledge as to the method in which the work was done. He was participating in the work on this occasion, and the facts bring it within the rule laid down by this court in Gulf, C. S. F. Ry. Co. v. Huyett, 99 Tex. 630, 92 S.W. 454,5 L.R.A. (N.S.) 669.
"The difference between the case at bar and the case of Railway Co. v. Turner [99 Tex. 547] 91 S.W. 562, is that in the Turner Case the injured party was not engaged in the work of switching the cars from which the injury occurred to him, but was engaged in a wholly independent business. He was not in a position to know at the time that the cars were being switched, as usual, in an unsafe and negligent way. The question of the assumption of risk depends largely upon the position of the party who is to be charged with such assumption with regard to his opportunity for knowing that at that time the thing to be done will be performed in the usual manner. If, knowing the usual method of doing the work and that it will be performed in that way, he participates in it, he will be held to assume the risk."
It will thus be seen that there is no analogy whatever between this case and the Brisco Case, as no question is here presented of a customary and usual negligent manner of handling the car which injured plaintiff, of which he knew, in which he participated, and to which his injury was attributable. There is no plea, no evidence, and no issue to submit to the jury that Gibson's stumble, if negligent (as the jury found it to be), was a customary and usual method of doing the work.
Believing that the reversal herein is based upon an action of the trial court which, if it be conceded to be erroneous, was an error which deprived the defendant of no substantial right whatever, and that the general charge of the court amply protected it in any possible defense which it might have had under the law of assumed risk, I am therefore constrained to enter my dissent.