There is abundant proof in the record to the effect that it was the custom of railroad companies to have cattle-guards within yard limits covered, and we are justified in finding, and do find, that as a rule cattle-guards within yard limits are covered, and that if the cattle-guard in this instance had been covered, the injury would not have occurred. Appellee testified to the effect that he never saw an open pit cattle-guard in a yard, and that he had no knowledge whatever of there being a cattle-guard in the yard limits at Fort Hancock.
It is insisted by appellant that the cattle-guard was not in the yard limits, but appellee swore that it was, and C.A. Blanchard, the agent of *Page 589 appellant at Fort Hancock, swore that the yard limits extended at least two car lengths west of the cattle-guard, and the diagram shows that the larger portion of the yard was east of the cattle-guard. We draw the conclusion from this testimony that the cattle-guard was in the yard limits.
In regard to the rule requiring employes not to enter between moving cars to couple or uncouple them, the division superintendent, W.R. Martin, testified, that in coupling and uncoupling cars a man goes in between the cars. That in uncoupling "the pin is always pulled while the car is in motion, and I have known this has been the practice since I remembered anything about railroading." The evidence of this witness, as well as that of appellee, showed that the rule was rarely ever regarded, and that it was impracticable to couple cars unless they were in motion. Martin swore that the rule was generally violated, and that the loss of time that enforcement of the rule would entail, may have had something to do with its nonenforcement. The evidence shows that there was no effort to enforce the rule. It is a rule of law that "when the nature of the business is such as to require it, it is the duty of the master, which the law imposes upon him as due to his servants engaged therein, to exercise reasonable care and diligence in making and promulgating rules which, if faithfully observed, will give them reasonable protection from injury." Bailey on Mast. and Serv., 72.
It is also the rule in a number of states, Texas among the number, that the duty of the master does not cease upon the making and promulgation of rules for his servants, but that he must go further and put forth honest efforts to have them enforced, and if they are habitually violated, and such violation or disregard of the rules is known to the master, they are in effect abrogated, and such violation will not prevent a recovery on the part of the servant. Railway v. Kier (Kan.), 21 Pac. Rep., 774; Hissong v. Railway (Ala.), 8 South. Rep., 776; Whitaker v. Canal Co., 126 N.Y. 544, 27 N.E. Rep., 1042.
The doctrine of assumed risks, when a servant enters into the employment of his master, rests upon the basis of the knowledge, actual or presumed upon the part of the servant, of the risks commonly attendant upon the business upon which he is desirous of entering. So it becomes a material question in most cases of this character to determine whether the servant knew, or ought reasonably to have known of, the danger. The determination of this matter raised a question of fact to be passed upon by the jury, and the mere fact that appellee may have passed over the road at different times and could have seen the cattle-guard would not raise the presumption that he actually saw it. He was charged with ordinary care in the ascertainment of the danger incident to his employment, but it can not be laid down as a proposition of law that where he was placed in a position where he might have gained knowledge of the danger, he is thereby precluded from recovery. Railway v. Huber (Pa.), 18 Atl. Rep., 334; Barbo v. Bassett (Minn.), 29 N.W. Rep., 198; McKee v. Railway (Iowa), 13 L.R.A., 817; Lee v. Railway, 89 Tex. 583.
The evidence showed that appellee had been working on that division *Page 590 of the railroad less than two months; that he had been over the cattle-guard but twice in the daytime; that his attention had never been called to the cattle-guard; that he had never known of an open pit cattle-guard in yard limits, and that he was hurt before sunrise on a foggy morning. It is not contended that appellee had actual knowledge of the cattle-guard, and the jury were justified in finding that the facts and circumstances did not charge him with knowledge of the danger. The evidence was to the effect that open pit cattle-guards were never put within yard limits, and if every cattle-guard outside of yard limits between El Paso and Houston had open pits, the presumption would not be raised that one had been put where appellee and other witnesses say they never saw one, within yard limits. In fact the conclusion from the testimony is, that cattle-guards of no kind should be placed in yard limits. The jury was justified in finding that if the pit had been covered the accident would not have occurred.
We are of the opinion that there was no assumption upon the part of the court, in the charge, that the rule requiring brakemen not to go between moving cars to couple or uncouple them had been waived by reason of knowledge of its habitual violation by employes, but that this question of fact was left for the jury to determine. It was the duty of the court to inform the jury of the effect to be given to it, if determined in the affirmative. The charge made an admirable presentation to the jury of every issue raised by the pleading and evidence, and was as favorable to appellant as the law would permit, and there is no just ground of complaint in regard to the refusal of the court to give the various requested instructions.
It is contended by appellant that although W.R. Martin, the division superintendent of appellant, had full knowledge of the utter disregard of the rule in issue, this was not notice to the railroad company. We are of the opinion that it was. The Texas authorities cited by appellant do not assert a contrary doctrine.
We have carefully considered every point raised by the motion for rehearing, and we adhere to the opinion that there are no errors of law necessitating a reversal, and that the verdict of the jury finds justification in the statement of facts.
The motion is overruled.
Overruled.
Writ of error denied. *Page 591