The theory on which the trial court instructed the jury to return a verdict in favor of appellee was that the risk appellant incurred in undertaking to assist in moving the motorcar from the toolhouse to and placing it on the track was one he assumed, because it was an "open, obvious, and patent" one, and "necessarily incident" to service he had undertaken to perform. No doubt the theory was a correct one, unless the testimony would have supported a *Page 337 finding that appellee, as charged in the petition, was guilty of negligence in failing to provide instrumentalities with which to do the work with reasonable safety. If the jury might have found that appellee was negligent, in that the means it provided for moving the motorcar to the track were defective and dangerous, when used, and appellant knew it, he nevertheless should not be held to have assumed the risk when he undertook the work, if appellee also knew of the defect, nor, if it did not know of it, unless a person of ordinary care, with knowledge of the defect and danger, would not have continued in the service of appellee. Vernon's Stat. art. 6645: Pope v. Railway Co., 106 Tex. 52, 155 S.W. 1175; Railway Co. v. Hodnett, 106 Tex. 190, 163 S.W. 13; Railway Co. v. Shelton (Com.App.) 208 S.W. 915; Railway Co. v. Blackburn, 155 S.W. 625; Railway Co. v. Riden, 194 S.W. 1163; Swann v. Railway Co., 200 S.W. 1139; Thornhill v. Railway Co., 223 S.W. 490; Lancaster v. Johnson, 224 S.W. 207. Whether, therefore, the trial court erred when he instructed the jury as he did, depends upon whether the testimony authorized a finding that appellee was guilty of negligence in the respect stated. If it did, then clearly the case should have gone to the jury.
The circumstances of the accident were not developed as fully as it seems to us testimony heard at the trial indicated they might have been. For instance, there was testimony from which, perhaps, an inference might have been drawn that a proximate cause of the accident was a failure on the part of men assisting appellant in moving the car to use care they should have used. Of course, if the accident was due solely to negligence on their part, appellant was not entitled to recover; for he did not charge negligence in that respect in his petition. We have concluded, however, that there was testimony which would have supported a finding that a proximate cause of the accident was failure of appellee, as charged in the petition, to provide instrumentalities reasonably safe for use in moving the car from the toolhouse to the track, and that the trial court therefore erred when he instructed the jury as he did. The testimony we have in mind was that of appellant, set out in the statement above, that the ground from the toolhouse to the track was about 5 inches lower than the track, and that the space between the part of the cross-ties outside the rail was not filled in, but was a "skeleton track," and that of the witness Henderson, indicating that instrumentalities other than those appellee had provided were necessary to avoid risk of injury to section men who undertook to move the car to the track.
The judgment will be reversed, and the cause will be remanded to the court below for a new trial.
On Motion for a Rehearing. It is insisted in the motion that the trial court did not peremptorily instruct the jury to find for appellees on the ground alone that it appeared as a matter of law that appellant assumed the risk involved in placing the motorcar on the track, but on the ground also that the testimony did not warrant a finding that appellees were guilty of negligence as charged in the petition. We think the instruction capable of the construction appellee gives it, and it will be found on reference to the opinion that the appeal was disposed of on the theory that the instruction was not erroneous, if it appeared that a finding of negligence on appellees' part was not authorized.
The negligence charged against appellees was a failure to keep the track "* * * at said place in proper repair by failing to fill in between the cross-ties, or providing running or cross boards over the same, thus leaving holes between said cross-ties, or that which is known as skeleton track, which made said premises dangerous for this plaintiff in the discharge of said employment; * * * that by reason of defendants' failure to keep their premises in a reasonably safe condition by failing to have said runway from toolhouse to track filled in level with said main track and by failing to fill in or board said skeleton track," appellant was injured as charged, etc.
The testimony relied on to support the allegations set out was that referred to in the opinion. We were of the opinion, and still are, that the jury might have found from that testimony: (1) That at the place used for "rerailing" the motorcar the ground was about 5 inches lower than the track. (2) That running boards to and across the track were not provided for use in placing such cars thereon. (3) That it was usual at such places, and necessary to the safety of the section men engaged in placing such cars on the track, to fill in so the ground would be level with the rails of the track, or else provide running and cross boards for use in placing such cars thereon. (4) That, had the ground been so filled, or had such boards been provided, it would not have been necessary to lift the car over the rails, and appellant would not have been injured as he charged he was. On such findings we think the jury would have had a right to conclude that appellee was guilty of negligence which was a proximate cause of injury to appellant.
*Page 338Therefore the motion is overruled.