This was a suit by plaintiff in error, Cox, to recover damages of defendant in error, St. Louis San Francisco Railroad Company, for personal injuries.
Cox was employed by the Railroad Company as a trucker at Hugo, Oklahoma. He was directed by his foreman, named Reams, to unload four bundles of paper, each weighing 110 pounds, by throwing them, with Reams' help, from the truck to the top of a pile some four feet in height, while resting the handles of the truck on the warehouse floor and while holding down the handles with one foot. Reams was authorized by the Railroad Company to determine the manner in which the paper should be unloaded and to direct Cox in unloading same. The paper was part of a shipment from Paris, Texas, to Hugo, Oklahoma. Cox had started to raise the truck handles so as to dump the paper from the truck to the floor, with a view of raising it from the floor to the top of the pile, when he was stopped by the above directions from Reams. Cox said when he received *Page 12 his directions: "Mr. Reams, the truck will dump." Reams replied: "They won't do anything of the kind. Back up and let them down and put your foot on the truck handle and we will unload from the truck." While Reams and Cox were unloading the bundles in accordance with Reams' instructions and while throwing off the second bundle, the truck handles suddenly struck Cox in the chest causing his injuries. The handles flew up when Cox's foot released same, which was occasioned by the act of Reams in swinging his end of the bundle of paper before Cox was ready to swing his end and before it reasonably appeared to Cox that he was ready to make the swing. The acts of Reams, in the manner in which he directed the bundles to be unloaded and in too hastily swinging his end of the second bundle, were negligent; and, his negligence was the proximate cause of the injuries to Cox. All of the above facts were plead and have support in the evidence. The charge of the trial court authorized a verdict for Cox on findings of negligence of Reams, with respect to either the manner in which he directed Cox to do the work or the manner in which he (Reams) did his part of the unloading. The trial court entered a judgment for Cox on a general verdict.
The Dallas Court of Civil Appeals reversed the trial court's judgment and rendered judgment for the Railroad Company on two conclusions of law, viz: first, that Reams was a fellow servant of Cox, and, second, that Cox assumed the risk of injury from Reams' acts of negligence. 159 S.W. 1042.
Cox suffered his injuries while he was engaged in unloading freight shipped from Texas to Oklahoma. He was therefore injured while employed by the carrier in interstate commerce, and liability for his injuries is governed by the federal employers' liability act. Southern Pacific Co. v. Industrial Accident Commission, 251 U.S. 259, 40 S. Ct. 130.
The plain words of the federal act, no less than the decisions construing it, fix liability on the carrier for injuries resulting from the negligence of any employe of the carrier, regardless of whether the negligent employe is a vice-principal of the carrier or a fellow servant of the injured employe. So, the conclusion of the Court of Civil Appeals cannot be upheld denying a recovery to Cox on the ground that Reams was his fellow servant. Boldt v. Pennsylvania R.R. Co., 245 U.S. 445, 62 L.Ed., 385, 38 Sup. Ct., 139; Second Employers' Liability Cases,223 U.S. 1, 38 L.R.A. (N.S.) 44, 56 L.Ed., 327, 22 Sup. Ct., 169.
The case not coming within the class as to which the defense of assumption of risk was eliminated by the Act of Congress, we must apply the common law rules in reaching a conclusion as to how far that defense was available to the Railroad Company. *Page 13
In behalf of the Railroad Company it is urged that the negligence causing the injuries consisted in the manner in which the work was required to be done; that such manner was known to Cox, and that the dangers incident thereto were both obvious and appreciated by Cox, who was an experienced trucker. Though we eliminate from consideration the act of Reams in swinging too hurriedly his end of the bundle of paper, we cannot hold that it was conclusively shown that Cox assumed the risk of injury from the manner in which the paper was unloaded. It is true that Cox was an experienced trucker. It is true that Cox knew the manner in which he was ordered to do the work. And, it is true that Cox was apprehensive of danger at the time he received Reams' order. But, after Cox had voiced his apprehension of danger he was assured by one having the authority from the Railroad Company to determine and direct how the work should be done that his fears were unfounded; and, he testified that after receiving this assurance he believed that the work could be done as directed, with safety, by the exercise of ordinary care.
An apprehension of danger, which has been removed through unfounded assurances of safety, can have no more effect in determining whether a risk has been assumed, than if it had never existed. It must, of necessity, be a subsisting apprehension if it is to furnish an essential element to sustain the defense of assumed risk. Hence, the soundness cannot be questioned of the rule that where the servant proceeds to do the master's work in a required manner, involving negligence for which the master is responsible, after calling attention to possible danger therein, in reliance on an assurance of safety by the master through one selected by him to direct the work, and the servant is injured by reason of the manner in which the work is done, the master cannot charge the servant with the assumption of the risk of his injury, unless the danger of doing the work in the manner required is so obvious that an ordinarily prudent person must appreciate it, despite the assurance of safety. Industrial Lbr. Co. v. Bivens, 47 Texas Civ. App. 396[47 Tex. Civ. App. 396], 105 S.W. 837; Orange Lbr. Co. v. Ellis, 105 Tex. 371,150 S.W. 582; Gila Valley Ry. Co. v. Hall, 232 U.S. 102, 58 L.Ed., 521, 34 Sup. Ct., 229; Coal Coke Ry. v. Deal, 145 C.C.A., 490, 231 Fed., 610; Lord v. Wakefield, 185 Mass. 218, 70 N.E. 123; Lack Singletree Co. v. Cherry, 166 Ky. 799,179 S.W. 1072; Richey's Federal Employers' Liability Act, sec. 73, p. 185; Street's Ed. Shearman Redfield on Negligence, sec. 215, p. 614.
Here it was the duty of Cox to obey Reams' directions. There is no evidence that Cox ever attempted the work of unloading with the aid of co-employe from a truck, with his foot on the handles, as Reams required the work to be done. His conduct was consistent with his reliance on Reams' assurances against danger. Clearly it was for the *Page 14 jury to determine whether, in the face of Reams' assurances, Cox appreciated the risk of his injury or believed, as he testified, that the work could be safely performed; and, even more clearly was the question one on which conflicting inferences might be drawn, and hence essentially one for the jury, as to whether the risk of injury was under all the attendant circumstances so obvious that a person of ordinary prudence would have appreciated it, notwithstanding Reams' assurances.
As said by Justice Holmes in McKee v. Tourtellotte,167 Mass. 69, 48 L.R.A. 543, 44 N.E. 1071: "When we say that a man appreciates a danger, we mean that he forms a judgment as to the future, and that his judgment is right. But if against this judgment is set the judgment of a superior, — one, too, who from the nature of the callings of the two men, and of the superior's duty, seems likely to make the more accurate forecast, — and if to this is added a command to go on with his work and to run the risk, it becomes a complex question of the particular circumstances whether the inferior is not justified, as a prudent man, in surrendering his own opinion and obeying the command."
Under the charge of the trial court, a verdict was authorized for Cox on the finding that his injury was the proximate result of negligence on the part of Reams in the way in which he did his part of the work of unloading the paper; and, the Court of Civil Appeals find that Reams did swing his end of the bundle of paper before Cox was ready to swing and before it reasonably appeared to Reams that Cox was ready, and that such conduct was negligence on Reams' part, causing the injury.
As stated above, Cox did not, as matter of law, assume the danger arising from the endeavor to unload from the truck. There is an utter lack of evidence to support the conclusion that Cox assumed the risk attributable not to that endeavor but to Reams' want of care in pursuing it. The law authorized Cox to assume that Reams would exercise ordinary care in doing his part of the work. The result of Reams' departure from the use of such care was instantaneous injury to Cox. The nature of Reams' act precluded knowledge of it by Cox or its discovery by him in time to have averted the injury. Under these conditions, there could be no assumption of the risk which arose from Reams' negligence in handling his end of the bundle of paper. Chesapeake O. Ry. Co. v. Proffitt, 241 U.S. 468, 60 L.Ed., 1102, 36 Sup. Ct., 620; Chesapeake O. Ry. Co. v. De Atley, 241 U.S. 314, 60 L.Ed., 1016, 36 Sup. Ct., 310; Texas P. Ry. Co. v. Behymer,189 U.S. 468, 547 L.Ed., 905, 23 Sup. Ct., 622; C.I. P.R. Co. v. Ward,252 U.S. 18, 40 Sup. Ct., 275, 64 L.Ed. ___; Pope v. Kansas City M. O. Ry. Co. of Texas, 207 S.W. 514. *Page 15
In T. N.O. Ry. Co. v. Kelly, 98 Tex. 137, 80 S.W. 79, the court approved a declaration of Chief Justice Gaines in Missouri Pac. v. Somers, 78 Tex. 442, 14 S.W. 780, which is as applicable to acts of negligence by employees, for which the employer is answerable, as to defects, and which is: "Because a servant knows of one defect he does not take the risk of another of which he has no knowledge, and if both contribute to injure him, he is entitled to recover, provided but for the unknown defect the accident would not have happened."
In this case, since the Court of Civil Appeals made no finding against the existence of any fact essential to plaintiff's recovery and since we do not approve the conclusions of law, on which alone that court based its judgment, it becomes our duty, under the settled practice in this court, to reverse the judgment of the Court of Civil Appeals and to affirm the judgment of the District Court. Beck v. Texas Co., 105 Tex. 303 [105 Tex. 303]; 148 S.W. 295; Tweed v. Telegraph Co.,107 Tex. 247. It is so ordered.
Reversed and judgment of District Court affirmed.