This case is brought before us by appeal from a judgment of the District Court of Johnson County, founded on a verdict of a jury, returned December 20, 1888, for the sum of $4666 in favor of appellee against appellant.
The suit is for damages for personal injuries inflicted on November 2, 1888, while appellee was in the service of appellant as night car inspector and repairer, at Cleburne, Texas.
Conclusions of Fact. — On the night of November 2, 1888, at 8:30 p.m., one of defendants' passenger trains, consisting of an engine, a baggage car, and two passenger coaches, came into Cleburne from Paris, Texas. Some slight repairs were needed about the "Miller drawhead" on the baggage car attached to this train. The train was consequently switched on to a spur track, and the engine was detached. The baggage car was separated from the two passenger coaches, about eight feet intervening. The air brakes connected with each car were set, and the cars thus detached were left stationary on the spur track.
At the bidding of one C.L. Renfro, with whom appellee was working, and who was doing the mechanical labor in making the repairs, appellee, in holding certain chains, which otherwise would have obstructed Renfro, and in holding a light to assist Renfro in making the repairs, assumed a position which placed his body in front of the drawhead of the baggage car, with the two passenger coaches at his back. In this position the detached coaches moved upon him, striking him in the back, and thus crushing him between the drawheads of the coaches, causing his serious injury.
The plaintiff was inexperienced in this business of night car inspector, as defendant knew. It was dangerous to work between coaches held by air brakes, as defendant also knew, though plaintiff did not. Printed rules and regulations of the company prescribed that air brakes must not be depended upon to hold cars left at stations, and these rules, as interpreted by appellant's agents and witnesses, required that the plaintiff, or C.L. Renfro, should, in the discharge of their duties, have applied hand brakes to the detached coaches. Had these hand brakes been properly applied, or had the wheels of the detached coaches been properly blocked, the accident would not have occurred.
Plaintiff had been informed that these rules and regulations would apprise him of his duties. He had applied to C.M. Baker, foreman of the company's round house and yards, who had, on the 15th of October, 1888, employed him in this service as night inspector, for a copy of these rules and regulations. This application he made as many as three times during the course of his employment, the last application having been made only a few nights before the injury was inflicted on him. Baker had failed to furnish him the rules. Had the defendant furnished the *Page 360 plaintiff with its rules and regulations he would not have gone between these coaches held apart by air brakes alone, and would consequently have avoided the injuries.
Conclusions of Law. — The foregoing facts with reference to the experience of the plaintiff, and of the refusal of Baker to furnish him with the rules and regulations of the company, were strenuously contested by the witnesses of the appellant in the court below. These facts were, however, sworn to by the appellant, and the verdict of the jury importing that they believed him, we feel constrained to adopt their evident conclusions.
The twenty-second, twenty-third, twenty-fourth, and twenty-sixth assignments of error are first called to our attention in the appellant's brief. They complain alike of the verdict of the jury as contrary to the law and to the evidence. They assert the contention, that under the evidence, Renfro and the plaintiff were fellow servants, as were also the switchmen who left the two passenger coaches on the track; that the injuries inflicted upon appellee were due to the negligence of himself, or of his fellow servant Renfro, or the switchmen,in failing to use hand brakes in fastening the detached coaches, and in relying exclusively, in violation of appellant's rules, upon air brakes for the purpose of holding these coaches.
Appellee's petition contains, in effect, two counts: (1) That the injury inflicted upon him was due to the negligence of the defendant company in failing to supply the detached coaches with sufficient air brakes. (2) That if the air brakes were in fact sufficient, and if the movement of the detached coaches was due to the failure of the switchmen and the plaintiff himself and his co-employe Renfro, to set the hand brakes or block the wheels, it being unsafe to depend on air brakes to hold the coaches, yet plaintiff is not chargeable with such negligence, and the defendant is nevertheless responsible to him, because he was inexperienced in the duties of night car inspector, and because of his ignorance of the rules of the defendant company with reference to the discharge of his duties, and because of the failure of defendant's foreman, Baker, to furnish him with these rules, as stated in the conclusions of fact above set out. In conformity with this second count, and with the evidence sustaining the allegations thereof, the court instructed the jury as follows:
"The court instructs you, that if you believe from the evidence that plaintiff entered the service of defendant as car inspector and repairer, and that he was at the time inexperienced and not acquainted with such business, and that said business was attended with latent dangers such as were not known to the plaintiff, and were not discoverable by the careful use of his senses, and that such latent dangers, if any, were not known to the plaintiff; and shall believe from the evidence that the agent of defendant *Page 361 knew plaintiff was inexperienced and unacquainted with the business undertaken by him, and that with such knowledge defendant failed to inform plaintiff of such latent dangers, if any such there were, and of the rules and regulations of defendant controlling and governing him, plaintiff, while in the discharge of his duties, and shall believe he applied to the defendant's agents by whom he had been employed for a copy of such rules and regulations, and shall believe that defendant's employer, whose duty it was to furnish plaintiff with such rules and regulations, failed and neglected to furnish plaintiff with the same when required so to do, and shall further believe that plaintiff was injured because of such failure as alleged in his petition, then you will find for plaintiff."
This charge embodied the law applicable to the pleadings of the plaintiff referred to, and to the evidence sustaining the same. Railway v. Watts, 64 Tex. 568; Railway v. Callbreath, 66 Tex. 528 [66 Tex. 528]. We are therefore unable to sustain the assignments of error referred to.
In its tenth and eleventh assignments of error, appellant complains of the refusal of the court to give the special charges set out respectively in them. These charges were properly refused. They embodied the question of proper care in the selection and employment of Renfro as a servant by defendant, and neither the pleadings nor the evidence raised such an issue. Railway v. Gilmore, 62 Tex. 391.
In the nineteenth assignment of error, complaint is made, that the court erred in submitting in its charge to the jury the question as to whether or not the air brakes attached to the car causing the injury were defective. It is contended, that there was no evidence that the air brakes were in any respect defective. The evidence bearing upon this issue was, in our opinion, extremely meager. There were, however, circumstances indicating that the air brakes were defective. These circumstances consist mainly in the fact that they were not sufficient to hold the detached cars, though the latter were on ground apparently level, or nearly so, and that the air brake holding the baggage car on which the work was being done was sufficient to keep it stationary. While the evidence on this issue preponderated, in our opinion, in favor of appellant, we are unable to say that the testimony in behalf of appellee was so scant as to justify the court in failing to submit the issue. We are confirmed in our view as to the correctness of this conclusion from the failure of the appellant to complain of the verdict on this ground.
The fourth special charge, embodied in appellant's thirteenth assignment of error, was also properly refused. It was erroneous, in that it was a peremptory order to the jury to find for the defendant upon the conditions therein named, ignoring the issues arising out of the allegations of the second count in the plaintiff's petition.
The ninth special charge, set out in appellant's eleventh assignment of error, was also properly refused, because it embodies the issue of increased *Page 362 risk after the employment of the plaintiff, which issue in no way arises out of the evidence in this case.
Appellant's twentieth assignment of error complains of the second paragraph of the court's charge, which we have already set out, as being without support in the evidence. The conclusions of fact found by us indicate that we do not concur with appellant in this contention.
The testimony of C.V. Meyers, complained of in appellant's ninth assignment of error, was, in our opinion, properly admitted. It was admitted solely for the purpose of impeaching the testimony of the witness Renfro, who had been previously interrogated on the same subject matter, and who had denied the statement about which witness Meyers was called to testify. The testimony complained of referred to a material issue in the case, namely, whether or not plaintiff had demanded of the foreman, C.M. Baker, the rules and regulations of the defendant.
Upon the request of the jury, the court gave them the following additional instruction:
"The court, in compliance with your question, instructs you, that if you believe from the evidence that Renfro and plaintiff were fellow servants, that is, engaged in the same kind of work, and if it was the duty of said Renfro to see that the cars under their inspection and upon which they were at work were fastened either by the hand brakes or by scotching the same in some other way, so as to prevent the same from moving, and if they or either one of them failed to perform that duty, and the plaintiff was injured by reason of such failure, then he can not recover in this suit; but this instruction is to be considered in connectionwith the whole charge herein before given by the court."
Appellant complains, in its twenty-sixth assignment of error, of the concluding clause of this instruction. We think that this clause was properly inserted, so that the charge might be made to conform to the second paragraph previously read to the jury, and thus to avoid the appearance of contradiction in the instructions of the court.
The judgment is affirmed.
Affirmed.
ON MOTION FOR REHEARING. J.W. Terry, for appellant. — 1. This court erred in failing to sustain the nineteenth assignment of error, and in holding that the court below did not err in charging the jury as set forth in said assignment. [See the opinion.] It is error for the trial court to charge the jury upon supposed issues, upon which there is no evidence that will reasonably warrant the jury in finding in favor of the party in whose favor the charge is given. Railway v. Scott, 1 Texas Civ. App. 1[1 Tex. Civ. App. 1]; Railway v. *Page 363 Barrager, 14 S.W. Rep., 242; Railway v. Thomas, 42 Ala. 672; Railway v. Allen, 78 Ala. 494; 28 Am. and Eng. Ry. Cases, 514; Pierce on Rvs., 383; Railway v. Houck, 72 Ill. 285; Railway v. Stewart, 13 Lea, 432; 21 Am. and Eng. Ry. Cases, 614; Case v. Railway, 64 Iowa 762; Hudson v. Railway, 41 Am. and Eng. Ry. Cases, 348; Railway v. Mallory, 31 Am. and Eng. Ry. Cases, 352; Mitchell v. Railway, 12 Am. and Eng. Ry. Cases, 163.
2. We think it established by the foregoing authorities, that the mere fact that the car moved was no evidence that its movement was caused by any defect or any negligence of the defendant. Unless the mere happening of an accident is sufficient evidence of the existence of a defect, which assumption is opposed to all the authorities cited, there was no evidence before the jury in this case that there was any defect in the air brake. The Supreme Court has repeatedly decided, that a charge of this character, making the liability of the employer depend solely on the existence of a defect, regardless of the question whether or not the employer had used reasonable and ordinary diligence to discover and guard against the defect, is erroneous. Railway v. Wells, 81 Tex. 685; Railway v. Johnson, 19 S.W. Rep., 151; Railway v. Williams, 18 S.W. Rep., 700; Railway v. Hoffman, 18 S.W. Rep., 741; Railway v. Thomas, 42 Ala. 672.