*436On Appellant’s Motion for Rehearing.
Appellant has filed and presented a motion for rehearing, urging some twenty grounds of error, although the argument is confined to two questions, namely: First, whether the evidence was so conclusive as to authorize the trial court to direct a verdict, or find, as a matter of law, that both appellant and ap-pellee were engaged in interstate commerce at the time of appellee’s injury; and second, whether prejudicial error was committed by the trial court in the manner and form of submission of the defense of the assumed risk. We deem it advisable to dispose of appellant’s contentions formally, and, in doing so, we will first address ourselves to the contentions that were argued.
In our original opinion, we did not affirmatively hold that appellant failed to bring itself under the provisions of the Federal Employers’ liability Act. Irrespective of a decision on that point, we held that, in the state of this record, prejudicial error was not committed by the trial court, even if this defense was inadequately or incorrectly submitted. Article 6437, Revised Civil Statutes of Texas of 1925, provides that a railroad employee does not assume the risk arising from the negligence of his employer. If it is alleged and proven that such an employee continued in the service, after actual or constructive knowledge of the risk and danger arising from negligence, it has the effect only of diminishing the damages, ami, under the Texas statutes and decisions, ' practically amounts to contributory negligence.
The burden of establishing the facts that would make available the defense of assumed risk under the Federal Employers’ Liability Act (45 USCA §§ 51-59) was on appellant. See T. & N. O. Ry. Co. v. Tilley (Tex. Civ. App.) 297 S. W. 1063; also in (Tex. Com. App.) 6 S.W.(2d) 86. The testimony adduced on the point was neither complete nor conclusive. Opinions and conclusions of an interested witness cannot be relied upon to take an issue from the jury in the absence of corroboration, even though the testimony is un-controverted by any other witness. C., R. I. & G. Ry. Co. v. Johnson (Tex. Civ. App.) 224 S. W. 277; Mills v. Mills (Tex. Com. App.) 228 S. W. 919; Caldwell v. McGarvey (Tex. Civ. App.) 285 S. W. 859. Since the court did not submit the issue of interstate commerce, and appellant did not request it, it cannot be presumed that this independent issue was found against the judgment. Ormsby v. Ratcliffe, 117 Tex. 242,1 S.W.(2d) 1084. Although Bassett testified that the appellant railroad had trackage rights in Oklahoma, its own railroad tracks and terminal were wholly within the state of Texas. This situation is not without probative importance.
The mere fact of employment by an interstate railroad does not bring the employee within the Federal Employers’ Liability Act. Shanks v. Delaware, L. & W. Ry. Co., 239 U. S. 556, 36 S. Ct. 188, 60 L. Ed. 436, L. R. A. 19160, 797. The rebord shows that the conductor ordinarily checked the waybills and kept a record of the contents and movement of the trains and cars. In the conductor’s absence, his duties were performed by the rear brakeman, who, in this case, was a Mr. Ditto. Shortly before appellee’s injury, the conductor handed the waybills and car lists of this train to Ditto, who thereafter directed the movement of the cars and the work of the other brakeman. Presumably the testimony of the conductor and the rear brakeman was available to appellant; certainly the records were accessible to it. Neither witnesses nor records were produced, and, having failed to do so, appellant cannot be heard to complain that they have been deprived of a defense available under the Federal act. Osborne v. Gray, 241 U. S. 16, 36 S. Ct. 486, 60 L. Ed. 865. See, also, Fort Worth & Denver Ry. Co. v. Stovall (Tex. Civ. App.) 272 S. W. 594, 595.
Thus far, we have discussed the propriety of submitting the defense of assumed risk upon the theory that the issue of assumed risk was not raised, but we- think that this case must be affirmed, even if it is conceded that the defense was available to appellant. ,
The court correctly defined the risks assumed by a railroad employee. - T. & N. O. Ry. Co. v. Tilley, supra; Fort Worth & Dever Ry. Co. v. Stovall (Tex. Civ. App.) 272 S. W. 594. Gila Valley Globe & Nv Ry. Co. v. Hall, 232 U. S. 94, 34 S. Ct. 229, 58 L. Ed. 521.1 A railroad employee is not required to exercise ordinary care to discover defects and dangers arising from the employer’s negligence. T. & P. Ry. Co. v. Archibald, 170 U. S. 665, 18 S. Ct. 777, 42 L. Ed. 1188. The negligence and the danger arising therefrom must not only be open and obvious, but must be so open and obvious as that the employee must necessarily have known it in the ordinary discharge of his duties. The definition was not subject to the objection urged in the trial court.
Special issue No. 17 submitted the defense of assumed risk in approved form. ■Southwestern Tel. & Tel. Co. v. French (Tex. Civ. App.) 245 S. W. 997. There was no exception taken on the ground that the submission was too general, and the issues requested by appellant were either affirmatively erroneous or incomplete. Under such circumstances, it is not error to refuse them. Freeman v. G. H. & S. A. Ry. Co. (Tex. Com. App.) 285 S. W. 607. The appellant did not attack these findings of the jury as being unsupported by the evidence in the trial court, and, in that condition of the record, this court could not set aside the jury findings, even if we believed, as we do not,’that the weight of the evidence was contrary to the verdict. We find *437no evidence to warrant the suggestion that in the brief interval between the occurrence of the negligence, found by the jury, and the accident, appellee could have, in the exercise of ordinary care, saved himself from injury. The appellee'was not injured by reason of any inherent danger of poling- the cars, but by the increased risk, attributable, not to the method, but to negligence in the manner of performing it. Under such circumstances, appellee could not be held guilty of assuming the risk of such negligence. C. & O. Ry. Co. v. Proffitt, 241 U. S. 462, 36 S. Ct. 620, 60 L. Ed. 1102. The evidence fails to show that the manner In which appellee lifted the lever would have been dangerous except for the subsequent heg-ligenee of the brakeman and engineer; therefore, appellee' was not injured by the, choice of a method, but rather by the negligence of appellant’s servants.
We conclude that the motion for rehearing should be overruled.
BUCK, J., did not sit on original hearing, and died on April 19, 1932.