This suit was brought by the appellee against appellant to recover damages for personal injuries alleged to have been inflicted by the negligence of the defendant.
The plaintiff alleged in his petition that on the 27th day of June, 1903, he was in the employ of the defendant company as a carpenter and car repairer in its shops and yards in the city of Douglas, Territory of Arizona; that extending from and connected by a switch with other tracks in the yard, was a track running into appellant’s shops, called the “rip” or “repair” track, upon which disabled cars, or such as needed repairing, were placed to be repaired by defendant’s car repairers. That the rules and customs of the company required that a blue flag should be placed at or upon the car nearest to the switch connecting the “rip track” with the others for the purpose of indicating. that engines or cars could not be run upon such track while the flag was up—the flag being in the nature of a command inhibiting cars or engines being 'run upon the track, and an assurance to employees, working upon cars thereon, that they were safe from the danger of engines or cars being placed upon that track while they were at work. That at the time stated, one George Delevan was, and had been for some time prior thereto, in defendant’s employ as foreman of the car repairers and known as the “Boss car repairer,” who had control of the “rip track” where damaged cars were placed for repair, and whose duty it was to see that the flag was kept flying in its proper place when defendant’s employees were at work on cars upon that track, and to remove the flag when it became necessary for an engine to place cars on that track or take them therefrom; that the. rules of the company required him, as such foreman, to personally notify all of the employees at work in repairing cars upon the rip track, before removing the flag, that it would be removed for the purpose of letting engines run thereon, and that he was not authorized to remove the flag until he had notified such employees that he would do so. That on the day stated a number of damaged cars were standing upon the rip track for the purpose of being repaired, and defendant’s carpenters and' repairers were engaged thereon at work in repairing them. The plaintiff being at work on the car furthest from the switch near the end which was nearest the switch, the car being entirely separated and disconnected from any other car upon the rip track; that while so at work, Delevan, without giving him notice or warning, removed the blue flag from the end of the car next to the switch for the purpose of letting an engine run thereon in order to take off a disabled car which was filled with coke, for the purpose of unloading it so that it might be repaired. That plaintiff received no notice of the removal of the flag, and being ignorant of the fact of its removal and that an engine was coming upon the track, continued at his ivork, and while so at work the engine was run on the track, and struck the car loaded with coke, and, failing to couple, knocked it against the car next to it, and that car in turn struck the next one and it in turn the next, and so on until the car that plaintiff was at work on was struck, and he was thereby caught between it and the car thus pushed against it, and seriously and permanently injured; that the action of Delevan, the boss car ■ re
The defendant answered by a general denial and pleas of contributory negligence, assumed risk and negligence of a fellow servant. In connection with the latter pleas the defendant pleaded that the common law in regard to the doctrine of assumed risk then obtained in the Territory of Arizona, and was not affected or modified by any statute.
The ease was tried before a jury and the trial resulted in a verdict and judgment in favor of plaintiff for $8,000.
Conclusions of Fací:—We conclude that the plaintiff was injured by the negligence of the defendant, as alleged in his petition, and that his injuries were not proximately caused by any negligence on his part or of a fellow servant, but were the direct result of defendant’s negligence, as alleged in his petition, and that he was damaged by reason of such injuries in the amount found by the jury.
The evidence upon which these conclusions are based will be stated at some length in connection with our conclusions of law.
Conclusions of Law:—1. The first assignment of error, which complains of the refusal of the court to peremptorily instruct a verdict for defendant, requires a statement of so much of the evidence as is necessary to be considered in determining the question whether the requested charge should have been given.
In its yard at Douglas, Arizona, the defendant maintained a track, extending from other tracks into its repair shops, which was designated by the witness as the “repair” or “rip” track, upon which were placed damaged or disabled cars to be repaired. The damaged cars were repaired by defendant’s mechanics while standing on this track; and to protect its servants while working on them there, a rule and custom of the company required a blue flag to be placed and kept at the switch, or on the end of the car nearest thereto, which connected the rip track with the other tracks in the yard. The presence of the flag was a signal of command to those operating locomotives or moving cars in the jard not to run them on this track, and a symbol of safety to those at work in repairing cars thereon from any danger from engines or cars being run upon it.
When it was desired to have a locomotive come upon this track for any purpose, the rule and custom of defendant required that all
On June 27, 1903, a number of cars were standing upon the rip track, the one farthest from the switch being separate from the others. The plaintiff, in the performance of the duties of his • employment, was under this car engaged in repairing it. While so engaged the blue flag, which had been placed on the end of the car nearest the switch, was removed by George Delevan, who was defendant’s servant in control of the rip track, and of its employes engaged in repairing cars thereon and who was known as the Boss repairer. He removed the flag in order to let an engine go on the track to take off a disabled car loaded with coke which could not be repaired without unloading it. He testified that when he removed the flag he called out, loud enough to be heard five hundred feet, to those at work on the track, “They are coming in after the cars.” The plaintiff did not hear the call, if it was uttered; and, without notice of and in ignorance of the fact that the flag had been removed and that an engine was coming on the track, he continued at his work under the car. Though Delevan testified that he did not give the engineer a signal to move his engine on the track, another witness testified positively that he did. This however is a matter of no moment; for the undisputed testimony shows that the engineer was near the switch waiting for permission to run on the rip track and that he saw Delevan take down the flag, which act was itself a signal for him to proceed. In accordance with the signal the engine was run onto the track and against the car loaded with coke and failing to couple thereto the impact knocked it against the next car and it in turn against the next and so on until the car on which plaintiff was at work was struck, thereby catching him and pinioning him between the drawheads of the cars, whereby he was seriously and permanently injured. There was evidence tending to show that Delevan was incomptent to discharge the duties of his employment by reason of his being an habitual dunkard, and that defendant knew, or by the exercise of ordinary care could have known, of such incompetency when it employed him and while he was in its service.
It is contended by this assignment that it appears from the evidence, as a matter of law, that the removal of the flag was not the proximate cause of plaintiff’s injuries, but that it was the propulsion of the engine against the car for the purpose of making the coupling. We believe the bare statement of the evidence is a refutation of this contention. The proximate cause of an event is that which, in a natural and continuous sequence unbroken by any new, independent cause, produces the event, and without which the event would not have occurred. It would be hard to conceive of a case in which the evidence brings it so clearly within this definition as the case.at bar. All the elements of “proximate cause” embraced in the definition are presented by the evidence so clearly and distinctly that the definition itself could be evolved from the facts, without taking anything from
2. The refusal of the court to instruct the jury that if it believed from the evidence that plaintiff’s injuries were proximately caused by the negligence of any other servant than Delevan to find for defendant, is the ground of the second assignment of error. The substance of the proposition advanced is that there being evidence from which the jury might have found that the switchman was negligent in signalling the engineer to move in on the rip track, if such negligence was found by the jury and was the proximate cause of plaintiff’s injuries, he was not entitled to recover.
In the statement under this proposition it is said “that the engineer Stoller, testified that Delevan did not signal him to go on the rip track, but this signal was given him by the switchman.” The engineer testified, “Delevan removed the flag and let me come back against the cars, but they did not couple. . . . When I went to make the coupling the switchman signalled me in.” This shows that the engineer went on the track upon the invitation of Delevan, extended by his removal of the flag. Had it not been removed the engineer would not have gone on the track with the engine, even if signalled by the switchman. The flag being removed for the purpose of letting the engine come on the track, it could not have been negligence in the switchman to give the engineer the signal. The signal from the switchman simply indicated to the engineer that the switch which connected the main track with the rip track had been so adjusted that he could run his engine from the one on to the other and was such as is always given on such occasions. It was not incumbent on either the engineer or switchman to warn employes repairing cars on the rip track that their engine was coming upon it. The duty had been entrusted by their master to Delevan, who had been placed in control of the track, and they had the right to presume that he had performed this duty before he invited the engineer, by removing the blue flag, to come on the track. There being no evidence tending in the least to show that the switchman was negligent in signalling the engineer, the requested charge was properly refused.
3. The assignment of error directed ¡against a part of the eighth paragraph of the court’s charge is, when the entire paragraph is read in connection with the entire charge and special charge Ho. 6 given at defendant’s request, manifestly untenable. As has been seen from our statement of the pleadings, it is specifically charged in plaintiff’s petition that Delevan was an incompetent man for the position which he held, and negligent and incompetent in the performance of the duties thereof, and that he was habitually drunk in the performance of his duties as Boss car repairer; that such facts were unknown to plaintiff, but were known to the defendant, or by the exercise of reasonable care could have been known to it, “yet notwithstanding this, defendant employed and retained in its employ the said Delevan.” These allegations are a complete refutation of appellant’s first two propositions under the assignment. The statement of facts appearing in the record refutes the other proposition,
4. There was no error in the refusal of special charge Ho. 9, requested by the defendant. If its substance was not embraced in the main charge, so much of it as is the law was fully covered by special charge Ho. 6, given at defendant’s request. The duty of using ordináry care to select competent servants, that is, servants of sufficient care, skill, prudence and good habits to make it probable that they will not cause injury to each other, and to dismiss servants who show such a want of these qualifications as to give reasonable ground for apprehension that they will injure, their fellow-servants, are duties personal to the master. Shear. & Redf., Heg. sec. 191; "Woods’ Master and Servant, sec. 417. If there is a lack of ordinary care on the part of the master to discover the incompetency of the' servant, either at the time of or subsequent to his employment, there is a breach of this personal duty. If the incompetency, in the exercise of this care, is discovered by the master before he employs the incompetent servant, there is a manifest breach of duty on the part of the master to his other servants, in emplojdng him. If, though ordinary care was used in emplojdng the servant, the fact of his incompetency is discovered by the master afterwards, then there is a breach of his duty to his other servants in exposing them to the risks of an incompetent fellow-servant. This breach of duty, in either event, is negligence, and if it be the proximate cause of an injury to a servant the master is liable.
This duty of the master is analogous to that which he owes to his .servants in furnishing'them with instrumentalities to do their work; in the first place, he must exercise ordinary care to furnish them with such as are reasonably safe; and in the second, he must exercise ordinary care, or inspection, to keep or see that such instrumentalities are kept reasonably safe for his servants’ use. If, in the exercise of this care, in either instance, he discovers that the instrumentalities are defective, then it is his duty as a matter-of law to discontinue the use of such defective instrumentalities. Likewise is it his duty to discontinue the use of a servant when he discovers that he is incompetent to discharge the duties of his employment. If, therefore, Delevan was incompetent to discharge the duties of his employment and the defendant knew of his incompetency, there was no question about it being negligent in retaining him in its employment. Wherefore the special charge was properly refused, because it made plaintiff’s right of recovery depend upon whether it was negligence in defendant to retain Delevan in its employ after discovering that he was incompetent to discharge the duties of his employment.
5. The fifth special charge requested by defendant was properly refused, because plaintiff’s knowledge or imputed knowledge of incompetency. and lack of sobriety of Delevan would not defeat his action against the company unless he knew or must have necessarily known of the danger incident to his incompetency. A servant must not only know of a defect in an instrumentality, whether animate or" inanimate, furnished by his master but must know or be charged with knowledge of the danger that may probably ensue from its use,
6. It does not apear from the statement in appellant’s brief under the sixth assignment of error that the warning there stated as given by Delevan, after he removed the blue .flag, of the approach of the engine on the rip track, was the usual and customary warning of the approach of such engine, and, in the absence of evidence (which should be contained in such statement) tending to show that it was the usual and customary warning, it can not be held that the court erred in refusing appellant’s fourth special charge.
7. There was no error in admitting the testimony of the witness, Fred Morris, as is complained of in the seventh assignment. Terrell v. Russell, 16 Texas Civ. App., 573; St. Louis & S. F. Ry. v. Smith, 90 S. W., 929; Galveston, H. & H. Ry. v. Bohan, 47 S. W., 1050; Galveston, H. & S. A. Ry. v. Heming, 39 S. W., 302; Missouri, K. & T. Ry. v. Schilling, 75 S. W., 66; McCabe v. San Antonio Traction Co., 88 S. W., 387; San Antonio Traction Co. v. Flory, 100 S. W., 201. The opinions cited answer all the propositions under this assignment, as well as those under the fourteenth, fifteenth, sixteenth, seventeenth, eighteenth, nineteenth and twentieth assignments of error. See also, 3 Wigmore on Ev. sec. 1974, and cases cited in note 1; Lawson Expert and Opinion Ev. (2nd ed.), 505, rule 63.
8. When the entire testimonj, embodied in the bill of exceptions, of the witness Seebree is read it is apparent that the Avitness could not have been understood by the jury as meaning that he heard men who worked with Delevan say that “his reputation for being careless and reckless was not very good.” Eor in the next sentence he states his meaning in using the words above quoted as follows: “I mean I haAe heard men say he was very careless about handling his work at times.” A servant’s general reputation of incompetency is admissible for the purpose of charging his master with knowledge of his incompetency in employing and retaining him in his service (East Line & R. R. Ry. v. Scott, 68 Texas, 694); and, upon this issue, we believe the testimony complained of by the twenty-first assignment of error was" properly admitted.
9. W. L. Spaulding, a witness for defendant, on re-direct examination by defendant’s counsel testified:
“I haAe heard of Mr. Delevan being drunk on duty while he was foreman of the rip track. Q. State when it was? A. I believe it was Fred Morris that told me about it. Q. When ? A. I am not sure, it seems to me about a year ago. Q. I mean during that time, not since? A. Xo, sir. Q. I mean during the time you were working up there with Delevan. A. Xo sir. Upon to June 27, 1903, I never heard of Delevan’s being drunk on duty.”
Upon cross-examination by plaintiff’s counsel this testimony was reiterated by the witness. Thereupon defendant’s counsel moved the court to exclude such testimony from the jury. The court refused to grant the motion on the ground that the testimony had been elicited
10. The court did not err in overruling defendant’s motion to suppress the deposition of T. J. Morris. El Paso & S. W. Ry. v. Barrett, 101 S. W., 1026; Young v. Pecos County, 101 S. W., 1057.
11. There was not a particle of evidence tending to show that at the time plaintiff was injured he was not in the exercise of ordinary care for his own safety. Therefore special charge No. 3, requested by defendant, was properly refused.
12. The court did not err in refusing special charge No. 5, requested by defendant, because it is embraced in the tenth paragraph of the court’s charge in the same form and almost the same words.
13. What we have said in disposing of the first assignment demonstrates that the failure of the engine to couple to the car can not be regarded as the proximate cause of plaintiff’s injuries. This was not a new or independent cause, but a sequence of Delevan’s negligence in removing the blue flag. Therefore the court did not err in refusing to give special charge No. 7 requested by defendant’s counsel.
14. There was no error in the court’s refusal of special charge No. 8, because it was given in the same form and in language of the same meaning in the ninth paragraph of the main charge.
15. That' part of the fourth paragraph of the court’s charge which is complained of in the twenty-ninth assignment of error, when read in connection with the entire context, was eminently proper and correctly stated a principle of law applicable to the issues in the case.
16. That part of the seventh paragraph of the charge is not obnoxious to the objections urged against it by the thirtieth assignment of error. The plaintiff’s petition alleged that Delavan was “an incompetent man for the position which he held and grossly negligent in the performance of his duties” and did not limit his incompetency to the cause of drunkenness. And notice to Struthers, the defendant’s vice-principal and master mechanic, of such incompetency was notice to the company.
17. The question as to whether Delevan gave the plaintiff sufficient warning of the fact of the removal of the flag, if the insufficiency of such notice was not shown by the evidence as a matter of law, was one of fact for the jury, and the. court did not err in submitting such question for its determination.
18. It conclusively appeared from the undisputed evidence, that
19. The court’s supplemental charge, when read in connection with the main charge and the special charge given at defendant’s request, is not open to the objections urged against it in the thirty-third assignment of error.
20. The court’s response to the question propounded by the jury after its retirement was only such as was proper to be made, in view of the fact that the jury had been fully instructed on all the issues in the case arising from the pleadings and evidence.
There is no error in the judgment and it is affirmed.