R.G. Griggs on the 7th day of August, 1905, was about twenty-one years old and in the employ of the railway company at Cleburne, Texas, in its bridge department. He was inexperienced in the use of brakes on cars, having used them but a few times. Mike Fenly was assistant foreman and in charge of the gang of men to which Griggs belonged. They were engaged in unloading heavy bridge timbers from coal cars which stood on the material track, which track extended about four hundred yards beyond the point where the car on which Griggs was injured was standing, and there was a gradual descent from the point where the car stood to the end of the track. The car was started by pinch bars, and, being put in motion, it would run by its own gravitation to the end of the track, increasing in rapidity as it moved. Griggs had assisted to unload one car and was returning when the car in question came down the track. Fenly, the foreman, called out, "some one get on and stop that car." Griggs mounted the car and took hold of the brake-wheel, whereupon he discovered that the brake-staff was crooked and he called to the foreman, saying that "the brake-staff is bent and might not work the brake," to which the foreman replied, "well, you will have to hold it." By this time the car was running pretty rapidly and Griggs placed an iron bar in the wheel and pulled it with a view of turning it around, but the wheel by reason of the crook in the staff was pressed against the end of the timber which made it difficult to turn the wheel. Griggs was in danger if he did not stop the car or if he attempted to jump off, so he gave the bar a strong pull and the wheel suddenly slipped by the end of the timber "with a jerk" which caused Griggs to fall off in front of the car, whereby he received the injury for which he brought suit. It is unnecessary for us to describe the injuries or go more into detail of the particular facts of the case. The jury returned a verdict for $2,000, which was affirmed by the Court of Civil Appeals.
The Railway Company waived all errors in the record which will not call upon the court to reverse and render the judgment. The only question presented is whether upon this state of facts there was evidence upon which the judgment could have been rendered.
In Drake v. San Antonio Aransas Pass Ry. Co., 99 Tex. 245, this court said: "If the master actually puts into the hands of his servant an implement, which the master ought to know to be in a dangerous condition for such immediate and hurried use that the servant is likely to use it without opportunity to see the defect and the attending danger, and to receive injury, the master's liability for an injury thus caused would scarcely be denied." This case comes well within the principle announced, for the defect in the brake-staff was called to the attention of the assistant foreman, who ordered Griggs to use it as it was. The emergency as shown by the evidence was such that Griggs had no alternative but to use the brake. It was dangerous to jump from the car and more perilous to let it run unchecked down the incline. Under these conditions the railroad company is liable for the injuries received. The judgments of the District Court and Court of Civil Appeals are affirmed.
Affirmed. *Page 148