Mrs. A.M. Bearden was the wife of W.B. Bearden, who was killed in the yards of appellee at Taylor, Texas. She brought this suit for herself and for the use of her children, except Mrs. Pipkin (who was made defendant) to recover damages on account of his death. Mrs. Pipkin and her two other married daughters disclaimed any interest in the suit and were dismissed. There seem to have been two trials of the case, both resulting in verdicts for plaintiffs, the last judgment, from which this appeal is taken, being for $5250, apportioned as follows: Mrs. A.M. Bearden, $2000; Chester A. *Page 66 Bearden, $250; Katie May Bearden, Johnnie Lee Bearden, and Jessie B. Bearden, each $1000.
It was alleged in substance that deceased was employed by appellant as night car inspector at Taylor, Texas, and that his duties required him to inspect all cars coming into said station at night; and in the performance of his duties at times it became necessary for him to get on such cars while they were being moved about in the yards before the inspection of a train was finished, so as to follow up the train and inspect it. That on the night of April 24, 1900, while he was engaged in the inspection of a freight train, the same was moved before the inspection was finished; and in order to follow it up, he hung on the side of one of said cars, and while he was hanging on the same he was brought in contact with an upright switch stand and thereby knocked from said car, and fell under its wheels, which ran over and instantly killed him.
It was alleged that said switch stand was unlighted and was too close to the track, and was too high, and presented a dangerous obstacle to persons whose duties required them to be upon the sides of moving cars, and that in this respect appellant was guilty of negligence, which caused the death of said Bearden.
There were also proper averments of the elements of damage.
Appellant's answer contained a general denial and special pleas setting up contributory negligence and assumed risk. At the close of plaintiff's evidence, appellant moved the court to instruct a verdict for defendant.
The defendant then, at the close of the trial, requested a peremptory instruction, and after the verdict made a motion to enter judgment for defendant non obstante veredicto.
The adverse ruling of the court in each of these respects is complained of, and appellant in this court earnestly contends that the evidence conclusively sustains the defenses of contributory negligence and assumed risk.
The evidence fully sustains the allegations of the petition with reference to the negligence of appellant, and shows that it was the cause of Bearden's death; and that plaintiffs sustained damages to the amount found by the verdict.
The only serious question of fact is whether the evidence showing contributory negligence of the deceased, or his assumption of the risk, was so conclusive as to require us to reverse the judgment.
All of the witnesses who testified, except Mrs. Bearden, were either at the time of the trial or at the time of the accident employes of appellant.
It was shown that on the night of the accident it was dark and raining. Bearden and the witness Brooks (his assistant) had inspected the south side of the train, and about half of the north side, when the train was moved, and they hung on the side of the cars. There were two unlighted switch stands not far apart in the direction they were going. Bearden had on a slicker and had a torch in his hand. He seems to have passed *Page 67 the first switch stand, but in passing the second he was struck by the switch target, knocked from the car, run over, and instantly killed.
The principal question is whether Bearden knew of the dangerous proximity of this switch stand to the track, and with such knowledge, assumed the risk of being struck by it in the performance of his duties; or whether with such knowledge, his conduct in attempting to pass it on the cars was contributory negligence.
The switch stand was located some distance from the depot, and about 500 yards from what is called the "switch shanty," where deceased stayed when not inspecting trains. It had been placed there about a year and a half before the accident. Deceased had been working in the same capacity ever since it had been placed there, but worked only at night. His duties required him to be in all parts of the yards at different times. Aside from these facts there was no evidence, except that of Brooks, which we shall presently discuss, to show his knowledge of the location of the switches, but only the inspection of the cars.
Brooks testified by deposition that he was just behind Bearden assisting him to inspect the train, and after they had caught on the sides of the cars, and just before they reached the first switch stand, Bearden warned him to "look out for the blind switch," and that he (witness) dropped off the car and walked around the first switch stand and caught another car, but Bearden hugged close to the car and passed this switch stand safely, and when witness had nearly reached the second blind switch stand, he saw that Bearden had dropped down to the ground, and was inspecting the cars as the train moved by. That witness then jumped off, and just as he did so Bearden caught another car, and as he passed the second switch stand it struck him, and witness presently went there and found his dead body.
It will be seen that this evidence, if believed by the jury, would have tended strongly to show contributory negligence on the part of the deceased, or at least such knowledge on his part of the dangerous location of the switch stand as would imply an assumption by him of the risk. We do not believe however, that it is so conclusive upon these questions, especially when considered in connection with other evidence, as to require us to set aside the judgment of the lower court. The testimony of Brooks, if true, may show that the deceased knew that the switch stand was unlighted, and that it was situated so near the track as to render some degree of care necessary in passing it; but it does not necessarily show that he knew it was so close as to be dangerous if proper care was exercised. It was the duty of his employer to provide a reasonably safe place for the performance of his work; and in the absence of actual knowledge on his part, he had a right to presume that this duty had been performed.
The evidence of appellant's civil engineer, who made an accurate measurement, shows that the distance from the side of a stock car to the target on this switch stand was 18 1/2 inches; and the distance from the *Page 68 nearest rail to the center of the stand is 55 inches. These are probably the correct distances.
To show that the deceased, notwithstanding his duties in the yards, may not have known the distance from the track, we call attention to the evidence of some of the other witnesses. The assistant inspector, Brooks, testified that he thought the switch stand was about 45 inches from the nearest rail.
T.D. Dunn, the yardman who put in the switch in question, thought it was about 13 inches from the target to a car on the track.
Martin, the switchman in charge of the yards, said: "The distance from the switch stand at which Bearden is said to have been killed to track No. 1, is about 15 or 16 inches."
George Willis testified: "I don't know the distance, though I am yardmaster, and have been for about fifteen or sixteen years."
The testimony of these four witnesses, all of whom had about the same opportunity as Bearden to learn of the proximity of the switch stand to the track, one testifying that he did not know, and the others showing by their incorrect estimates that they did not know the distance, affords a demonstration of the fact that Bearden may not have known the distance. Some of these witnesses also testify that they supposed it was far enough to "clear a man" on the side of a car; and this supposition, which the law authorized in the absence of knowledge, may have been in the mind of the deceased.
Taking these facts into consideration, even accepting as true the testimony of Brooks, we can not say that the finding of the jury was unsupported by the evidence. It may be further true that the jury did not believe that part of Brooks' testimony which tended to show Bearden's knowledge of the danger. There were circumstances which might have warranted them in discrediting this evidence. He was an employe of defendant; this part of his testimony was given by deposition; and if not unreasonable, it was, to say the least, somewhat remarkable that the deceased with his last words should warn Brooks against the danger of the blind switch, and the next instant meet his own death by disregarding the danger.
While the evidence, upon the whole, tended rather strongly to show knowledge on the part of the deceased, yet it was not so conclusive as to warrant us in setting aside the judgment.
There was no error in permitting proof that deceased and other inspectors had for many years been accustomed to hang on the sides of moving cars when a train was moved before an inspection was finished. It served to show that deceased was performing his work in the usual and customary manner; and the long existence of the custom authorized the jury to presume that the company had notice of it. Lawson, Usages and Customs, sec. 21; O'Mellia v. Railway, 21 S.W. Rep., 507.
It was proper to show the kind and location of other switch stands in the yards at Taylor; and also that the switch stand where deceased was killed was used because there were no others on hand at the time, and *Page 69 that it was the intention of defendant's yardmaster, when he placed it there, to replace it with another kind of stand as soon as possible. This evidence was pertinent to show whether it was necessary to maintain the switch stand as it was, and whether defendant had used ordinary care to provide a reasonably safe place for deceased to work.
Appellant offered to prove by certain witnesses that Bearden "was familiar with the yard and knew the tracks,structures, switches and switch stands, and their location and proximity to the track," which evidence was excluded. Appellant was permitted to show what opportunities deceased had to acquire such familiarity, and every fact indicating that he had such knowledge. Whether he actually had such knowledge was a conclusion to be drawn, not by the witnesses, but by the jury.
We have carefully examined the assignments relating to the charge of the court, and find no error. The law of the case was correctly presented, and the special charges, so far as they were correct, were embodied in the instructions given.
There being no error in the judgment, it is affirmed.
Affirmed.
Writ of error refused. *Page 70