The Texas New Orleans Railway Company, jointly with other railroads, owned and operated creosote works near the city of Houston, for the purpose of treating ties. There was a large number of ties in the yard stacked between two tracks and extending from near the one to near the other track. The south track was used to carry the ties to the works from the stacks by placing them on tracks or cars for that purpose, taking them from the stacks. The ties were in stacks about eight feet high, one tie upon another. The ties from bottom to top of the stack was called a tier, and each tie was about eight feet long and eight inches wide. When the ties were brought into the yard for treatment the cars were unloaded from the *Page 343 north track and stacked, beginning near the south track and extending back to a point within about four feet of the north track. There were two gangs of hands that worked at night removing the ties to the works, beginning at the south track and taking them back to the north track. The hands employed on the night before the injury occurred removed all of a stack except about four or five tiers near to the north track, but left that remnant standing without bracing or other security against falling over. A gang of hands to which Echols belonged commenced work to unload a car of ties on the north track on the morning he was injured. Echols was employed on the 1st of March, and was injured on the 3rd of that month. He had worked there for two or three months before that time; that is, at a time previous to this employment. Echols and his gang were ordered to push a car down the north track to an opening, and, a train following them, they walked on the side of the car to push it. When he, Echols, got opposite to the remnant of the stack left by the night gang, it fell towards him and caught him between the car and the ties, breaking his leg.
He sued the Texas New Orleans Railway Company for damages, alleging, among other things, that it was negligent in failing to make and enforce rules to govern the gang removing the ties to the works in the performance of their work, and especially as to the manner in which remnants of stacks should be secured. He recovered judgment against the railroad company, which was affirmed by the Court of Civil Appeals.
The Court of Civil Appeals found, as a conclusion from the evidence, that "the defendant had adopted no rules or precautions for the protection of the men unloading the cars against liability to injury from the falling of the remnant of the stacks, and by which they would be left in a reasonably safe condition."
Plaintiff in error presents a number of objections to the judgment, but we will consider one only, as the others are either not well taken, or are embraced in the one considered. Defendant asked the court to give this charge to the jury: "The evidence being insufficient to warrant a verdict for the plaintiff, you will return a verdict for the defendant, the Texas New Orleans Railroad Company." It was refused.
There is no evidence of negligence on the part of the defendant, other than a failure to make rules to govern the hands as to what should be done to secure the remnant of stacks. We must consider this case, under the findings of the court and the manner of its presentation here, as if that finding was fully sustained by the evidence.
Whether or not the evidence is sufficient to show a case in which the duty to make rules rested upon the defendant is a question of law for the court. If the facts raised that issue it should have been submitted to the jury; otherwise it should not. When submitted to the jury, the reasonableness of such regulations is a question for the jury. *Page 344
The rule of law as to when it becomes the duty of the master to make rules for the safety of employes is well stated by Mr. Wood in his work on Master and Servant, thus: "If a master is engaged in a complex business that requires definite regulations for the safety and protection of his employes, a failure to adopt proper rules, as well as laxity in their enforcement, is negligence per se, and the establishment of defective or imperfect rules is such negligence as renders the master responsible for all injuries resulting therefrom." Wood's Mast. and Serv., sec. 403; 3 Wood's Ry. Law, sec. 382. This rule is quoted and approved in Reagan v. Railway, 93 Missouri, 348, and in Morgan v. O. I. Co., 31 N.E. Rep., 234. This question has been before this court in the following cases: Railway v. Watts, 63 Tex. 552; Railway v. Smith,76 Tex. 618, and Railway v. Hall, 78 Tex. 658 [78 Tex. 658]. In the first case this court said: "Where the employe is engaged in a dangerous service, it is the duty of the master to use all reasonable and necessary means to protect him against any superadded danger that might be reasonably expected to arise from extrinsic causes. * * * For having placed its servants at labor upon these repair tracks, it was incumbent upon the company to use due care in protecting them against danger arising from these extrinsic causes." In the other cases the court followed Railway v. Watts. It will be seen that the rule laid down is substantially the same as quoted from Wood on Master and Servant.
In Railway v. Watts, 63 Tex. 552, the injured party was engaged in repairing cars on a repair track, standing between the cars, when an engine backed down against the car at which he was employed, injuring him. Railway v. Hall was a similar case, and in Railway v. Smith the plaintiff was on a train on the road, and for want of orders the train collided with another train, whereby he was injured. In each of these cases the servants were engaged in hazardous employments in which they were exposed to dangers arising from the acts of other employes by which they were liable to injury, unless some system were adopted by which such employe would be warned of the approach of danger.
In Abel v. President, etc., 103 New York, 581; Sheehan v. Railway, 91 New York, 332; Railway v. Lavalley, 36 Ohio State, 221; Reagan v. Railway, 93 Missouri 348 (quoted above); Morgan v. O. I. Co., 31 Northeastern Reporter, 234; and Corcoran v. Railway, 126 New York, 673, the facts showed that the business in which the servants were engaged was of a hazardous nature. In all of these cases the same doctrine is announced. We have carefully examined the authorities, and find no support for the proposition that in a business which involves no exercise of peculiar skill, in which there is in use no dangerous machinery, or that in itself does not involve extra hazard to the servant, *Page 345 an employer is required to make and enforce extra rules for the performance of the work.
In this case the work to be done was of that character which could be performed and understood by any laborer of common intelligence; in its performance there was no danger greater than attends any work commonly done in the ordinary avocations of life. The reason for the rule requiring of the master the precaution of prescribing regulations for the discharge of such duties does not exist here, and therefore the rule does not apply to this case.
The same requirements apply to all employers, railroads, manufacturers, merchants, farmers, and in fact in every branch of business when the business is such that the danger to the servant exists by reason of the very nature of the service to be performed; and it applies to neither when that danger may not be reasonably anticipated on account of the character of the work.
Suppose that a citizen of the city of Houston had been running a woodyard with hands employed hauling and stacking cordwood, and at the same time other hands taking down the stacks of wood and delivering it to customers. The same danger would exist as in this case, that a stack of wood eight feet high left unsecured, with a narrow base, might fall upon one passing, in discharge of a duty in the yard. The same reason for the owner of the woodyard to make rules for the performance of this duty would arise out of this state of facts. Indeed, there is scarcely an employment in which labor finds remuneration that is not attended by some dangers arising out of the negligence of coemployes. The rule is a sound and salutary one when applied to cases involving extra risks, but it would be burdensome to all characters of ordinary business if extended beyond the necessity out of which it originated.
There was no evidence in this case of negligence on the part of the railroad company, and the court erred in not giving the charge requested, for which error the judgments of the District Court and Court of Civil Appeals are reversed, and the cause remanded to the District Court for trial.
Reversed and remanded.
Delivered June 14, 1894.
ON MOTION FOR REHEARING.