Appellee instituted this suit to recover damages for injuries sustained by him through negligence on the part of appellant. A trial by jury resulted in a verdict and judgment for appellee in the sum of $10,000.
This is a second appeal, the decision in the former one being reported in 39 Southwestern Reporter, 961. The case is before this court on the same pleadings and practically the same evidence as on the former appeal, and reference is made to the former opinion for a statement of the pleadings.
We find that appellee was an employe of appellant, and, while in the discharge of his duties as brakeman, entered between two moving cars to uncouple them, and fell into an open pit cattle-guard within the yard limits, and a car of appellant passed over him and crushed his right arm so that he lost it and sustained other serious and permanent injuries. The injuries were caused by the negligence of appellant. No negligence on the part of appellee contributed to the injury. Appellee at the time *Page 587 of the injury was 43 years old, healthy and robust, and had a life expectancy of twenty-three years. There was proof to the effect that appellant had a rule prohibiting employes from entering between moving cars for the purpose of coupling or uncoupling them, but it was proved that the rule was uniformly disregarded by employes with the knowledge of appellant and that no serious effort was made to enforce it. It is the general doctrine of American courts that, if it is customary to disobey the rules, and there is no effort made by the railroad company to enforce them, such disobedience will not defeat a recovery. Railway v. Nickels, 50 Fed. Rep., 718; Barry v. Hannibal (Mo.), 11 S.W. Rep., 308; Fish v. Railway (Iowa), 65 N.W. Rep., 995.
The rule is thus announced in this State: "Proper rules which are usually and customarily violated are presumed to be not intended for enforcement; not rules at all." Railway v. Scott,71 Tex. 703.
When the violation of the rules has been continued for a long while, abrogation of them by the company is presumed. Railway v. Leighty (Texas Civ. App.), 32 S.W. Rep., 799, affirmed in88 Tex. 604.
In the case above cited no stress is put upon the question of knowledge on the part of the company of the violation of the rules, but if the rule be, as insisted by Elliott in his work on Railroads, section 1282, that the knowledge of the failure to obey rules should be known to the railroad company in order that a violation will not bar a recovery, that requisite is met in this case. The knowledge of the violation of the rules was brought directly home to the company through one of its superior officers. The knowledge was communicated to the division superintendent, whose duty it was to see the rules enforced. "Notice given to, or knowledge acquired by, an officer, or an agent of the corporation, when acting for the corporation within the scope of his authority concerning matters about which he is acting or has authority to act, will be imputed to the corporation." Elliott on Railroads, sec. 226; Railway v. Kier (Kan.), 21 Pac. Rep., 770; Railway v. Nickels, 50 Fed. Rep., 718; Whittaker v. Railway, 126 N.Y. 544.
The fourth paragraph of the charge is as follows: "If you believe from the evidence that said cattle guard at or near Fort Hancock could have been covered in such a way as to not impair its usefulness and effectiveness as a cattle-guard, and that, taking into consideration the place where said cattle-guard was located, a reasonably prudent man under the same circumstances and in the exercise of reasonable diligence would have covered the same, and that covering the same would have prevented injury, then it was the duty of defendant to have covered this one. And if you believe from the evidence that the failure of defendant to cover the same was negligence on its part, and that by reason of such negligence the plaintiff was injured, then he would be entitled to recover, unless you shall find against him on some other issue as to which you will be instructed hereafter."
It is the complaint of appellant that the charge is upon the weight of the testimony, in that it instructs the jury that the omission of certain *Page 588 acts would constitute negligence. The charge does not seem to be open to the criticism, but leaves the question of the feasibility of covering the cattle-guard, the question of whether the location was such that a reasonably prudent man would have covered it, and whether the accident would have occurred, to the jury, and if they found in the affirmative, then the court declares that it was the duty of appellant to have covered the cattle-guard. The question of negligence is left for the jury to determine. Railway v. Lankford, 88 Tex. 499; Conwill v. Railway, 85 Tex. 97.
None of the charges requested by appellant should have been given. Most of them were upon the weight of the testimony, and the law applicable to the case contained in them was given in the charge of the court. The charges being identical with those discussed by the court on the former appeal, we reiterate the decision thereon, and a further discussion is unnecessary. Every question arising from the facts was clearly presented in the charge of the court, and the jury found in favor of appellee. There are facts that will justify the verdict. It is true that appellee had traveled over the road a number of times, and swore that he knew there was an opening where he fell, but he stated that he thought it was covered. The open pit cattle-guard was within the switch limits, and that it was negligence to have it constructed at that locality is not only shown by the testimony of appellee's witnesses, but by the testimony of J. Kruttschnitt, the general manager of the Southern Pacific system, who swore that he endeavored to keep cattle-guards out of the yard limits. There must have been some cogent reason for such caution. The jury were justified in finding that the cattle-guard in question ought not to have been where it was, uncovered, and that appellee did not know that it was there, or at least was under the impression that it was covered and could be crossed by him.
The verdict is not excessive. Railway v. Randall, 50 Tex. 254 [50 Tex. 254]; Railway v. Johnson, 76 Tex. 421 [76 Tex. 421]; Railway v. McClain, 80 Tex. 85.
The judgment of the District Court is affirmed.
Affirmed.
ON MOTION FOR REHEARING.