the rate of speed the chauffeur was driving, and from the position in which Anderson was when confronted with the machine, no application of the brakes could have saved him; at least, there is nothing in the evidence indicating that the final collision was the result of any defect of the car or brakes. No explanation of this character was offered in behalf of the plaintiff in error here, notwithstanding the fact, as was admitted on the submission of this cause, the chauffeur was present upon the trial and was not offered as a witness. Presumably both the chauffeur and the plaintiff in error's daughter were available as witnesses, and could have testified to a moderate rate of speed, or to any other fact or circumstance indicating a want of negligence upon the chauffeur's part. the driver and daughter was at the time on their way to plaintiff in error's office for the purpose of bringing them home to lunch, so that on the whole there seems to be little or no dispute but that the driver, at the time and place in question, was such servant or employé of the plaintiff in error as to render plaintiff in error liable for the consequences of the driver's negligence. It is altogether improbable, as we think, that, had the issue been submitted, any determination thereof on the part of the jury in plaintiff in error's favor could reasonably have been made. [9] There is a further contention that the court should have given a peremptory instruction for the plaintiff in error; but what we have already said, we think, makes it sufficiently plain that there was no error in refusing this instruction. We conclude that all assignments of error should be overruled and the judgment af [6] It is a familiar principle that, where a party fails to present evidence within his power to produce, the presumption is that the evidence, if offered, would be unfavor-firmed. able. While it seems to us the case was complete without resort to the issue of discovered peril, nevertheles we find no reversible error in the submission of the issue. We certainly fail to find any substantial merit in the particular objections urged to the charge submitting it. [7] There are some minor questions which we should perhaps briefly mention. One is an objection to the evidence of the witness Tyra, which was to the effect that the driver of the car stated "that he was driving a little fast," etc., but it appears that the conversation in which the chauffeur made this statement was almost immediately after the accident; that Miss Burnett stated at about the same time that she, previous to the accident, had requested the driver "not to run so fast." No objection was made to this statement of Miss Burnett. Moreover, a number of witnesses testified to the rapid driving of the car. This fact seems hardly to be disputed; the evidence makes plain, as it seems to us, that the driver at the time was largely exceeding the speed limit, and the statement of the driver to Tyra, objected to, could, in no event, create in the minds of the jury an unfavorable or prejudicial influence on the subject of the car's speed. [8] There is a further objection that the court erred in refusing to give a special charge to the effect that, if the jury found that the person driving the car was not at the time an employé or servant of the defendant, they should find for him. The only ground for a contention that this issue was raised is that plaintiff in error testified that the driver of the car was paid by his father. Plaintiff in error admitted, however, that the car was his; that he, with his daughter and his father, constituted the family; that his car and one of his father's were used indiscriminately, as also was the driver; that BUCK, J., concurs in the final conclusions reached, without concurring in some of the language used. SCHAFF v. HENDRICH. (No. 8933.) (Court of Civil Appeals of Texas. Ft. Worth. Dec. 14, 1918.) 1. MASTER AND SERVANT 280-ACTION FOR INJURIES-EVIDENCE-ASSUMED RISK. Evidence held to show that railroad employé, injured while working in roundhouse pit by reason of slippery condition of pit bottom, knew of such condition and realized risk of slipping and falling by reason thereof in performance of his duties. 2. COMMERCE 8(6)-STATE STATUTES-INTERSTATE COMMERCE-ASSUMED RISK. State statutes abrogating defense of assumed railroad employés engaged in interstate comrisk are inapplicable to actions for injuries to merce, federal statutes and decisions governing. 3. MASTER AND SERVANT 204(1)—ASSUMED RISK-FEDERAL EMPLOYERS' LIABILITY ACT. Federal Employers' Liability Act has not abrogated the defense of assumed risk under the common law. 4. MASTER AND SERVANT 226(1)—ASSUMED RISK-RAILROAD EMPLOYÉ. Railroad employé engaged in interstate commerce assumes all ordinary risks incident to employment, but not those arising from railroad's negligence. 5. MASTER AND SERVANT 217(10)—ASSUMED RISK-RAILROAD EMPLOYÉ. Railroad employé engaged in interstate commerce, knowing that machinery is defective, the place of work unnecessarily dangerous, or that proper rules are not enforced, assumes risk thereof, unless he informs employer, who promises to correct conditions. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Irdexes 6. MASTER AND SERVANT 288(14)-ASSUMP- [ing therein in the discharge of the duties of TION OF RISK-PROMISE TO REMEDY CONDI- plaintiff's employment. TIONS. In railroad employé's action for injuries sustained while engaged in interstate commerce, defended on ground of assumption of risk, foreman's statement, "Well, I will see," was insufficient as matter of law to sustain finding of a promise to repair defective condition. 7. MASTER AND SERVANT 263 RISK-PLEADING. ASSUMED On or about the date mentioned above, plaintiff and other members of his tank gang undertook to replace the wheels of one of the engine tanks with new ones, and preparatory to so doing the engine and tank were placed over the pit. The tank was then uncoupled from the engine and jacked up so as to allow the removal of the wheels or trucks thereunder for the purpose of replacing them with new ones. While plain. Employé, suing for injuries and seeking to avoid employer's defense of assumed risk by employer's promise to remedy conditions, must spe-ployés in rolling out the old wheels after tiff was in the pit and assisting other emcially plead such promise. the tank had been jacked up, and while pushing on the wheels in order to move them, Appeal from District Court, Wichita Coun- his foot slipped on the wet cinders in the ty; W. N. Bonner, Judge. Action by E. P. Hendrich against C. E. Schaff, receiver of the Missouri, Kansas & Texas Railway Company of Texas. Judgment for plaintiff, and defendant appeals. Reversed and rendered. Martin, Bullington, Boone & Humphrey, of Wichita Falls, for appellant. Nicholson & Fitzgerald, of Wichita Falls, for appellee. bottom of the pit, and as a result he fell, his breast striking against the flange of one of the wheels of the truck which he was then moving. Hendrich instituted this suit against the receiver to recover damages for personal insult of said fall, upon allegations that the juries which he alleged he sustained as a redefendant was guilty of negligence in allowing the bottom of the pit to become wet and slippery, and hence had failed to discharge his legal duty to the plaintiff to ex place to work. From a judgment in plain. tiff's favor on a trial before a jury the defendant has appealed. DUNKLIN, J. C. E. Schaff was duly ap-ercise ordinary care to furnish him a safe pointed receiver of the Missouri, Kansas & Texas Railway Company of Texas by the United States District Court of the Northern District of Texas, and under and by virtue of the orders of that court he operated the railway of that company, and also that of the Wichita Falls & Northwestern Railway Company of Texas, which latter line had been leased by the railway company first mentioned. On January 2, 1917, E. P. Hendrich, as an employé of the receiver, was working in the roundhouse of the Wichita Falls & Northwestern Railway Company of Texas, in the city of Wichita Falls, in the capacity of foreman of a tank gang, the duties of which gang included the work of removing wheels from tanks or tenders of locomotives and replacing them with new ones. In order to perform that service the tank would be uncoupled from the engine, then jacked up so that the old wheels or trucks could be removed and replaced with new ones. This work was done over a pit in the roundhouse, spanned by the track over which the locomotive and the tank would be placed. In cleaning the locomotive by blowing it out with steam, water would be discharged into the pit, and in order to get rid of this water a drainpipe was constructed, which led off from the pit. Prior to the accident hereinafter related, this drainpipe had become obstructed to such an extent that the floor of the pit, which was covered with cinders, was rendered wet and slippery to any one work One of the defenses urged by the receiver was that at the time of plaintiff's alleged injury he was engaged in duties incident to interstate commerce, and that he could not recover because he had assumed the risks of his injury; but the finding of the jury upon that issue was adverse to him. That issue was submitted to the jury in the court's charge as a controverted issue of fact. The first error assigned is to the refusal of the defendant's request for a peremptory instruction to the jury to find in his favor upon that issue. The proof showed without controversy that the tank or tender upon which plaintiff was working at the time of his alleged injury was attached to engine No. 220 which, together with the tender, was then, and had been for some time prior thereto, used exclusively in hauling passenger, baggage, and express trains between Wichita Falls, Tex., and towns in the state of Oklahoma; and that such use of the locomotive and tender had been known to plaintiff for more than two years prior to the alleged accident. [1] That plaintiff knew of the slippery condition of the bottom of the pit and of the risk of slipping and falling by reason thereof in performing the services in which he was engaged at the time of his alleged injury was conclusively proven by his own testimony. He testified: That he was first en For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes gaged as one of the yard gang around the same roundhouse in the year 1912, during which year he frequently saw engines blow out steam and water into the pit. During the month of October, 1914. he went to work as a helper on the tank gang, which gang was doing the same work that was being done at the time of his alleged injury; and that he continued in that employment up to the date of the accident, having become foreman of the tank gang in the meantime; and that he was working on the tank of engine No. 220 at the time of the accident. He further testified as follows: "On the 2d day of January, when I got hurt, I was putting in a new pair of wheels on the tank of this engine, I was doing this because the old ones were reported to be taken out. * * "Yes, sir; I had charge of that job, and I had exclusive control of all about it, and how to do it. "Yes, sir; I did tell those men with me to take those wheels out and how to take them out, but I took them out according to instructions that I had from the foreman. Yes, sir; the foreman was there at the time; he was not right there at the place that I was working at that time, but I took the wheels out as I usually did. That ground had been slippery there as it then was for some four or five months; I had seen it there during that time; and that evening, when I started to work there to take those wheels out, I saw that the ground was slippery to how many times I had slipped and fallen there before, for I do not know. "Yes, sir; I had taken off wheels just like that before, and I had never hurt myself on the wheels before. I fell a time or two, but I never hurt myself, that is, not on the wheels; I had not before fallen on the wheels while working on the wheels, but on other work, while I was using the pinch bar, or pry bar, something like that. "My slipping and falling and striking my breast on the flange of the wheel was caused by the wet ground there; that is what caused me to slip. "Yes, sir; I had removed wheels there when the ground was dry and put in new wheels; and I had never slipped that way that I know of, when the ground was dry. "Q. Then that condition around the pit was in no worse condition than it had been theretofore? A. Not particular, no. condition that it was in? A. Yes, sir. "Q. It was not dark in there that day? A. No; it was day. "Q. Was light? A. Yes, sir. "Q. In plain view, big open doors there? A. Yes, sir. "Q. Right there, a few feet from you? A. Yes, sir. tion it was in? A. Yes, sir. that day? A. Yes, sir. "Q. You could see that it was slippery before you began to move those wheels? A. Yes, sir. them; knowing that the ground was slippery "Q. Still you went ahead and went on moving and knowing that your feet were liable to slip, still you went ahead? A. Yes, sir. "Q. And you knew that your feet were liable to slip in handling those wheels? A. Yes, sir. ahead and did move them and slip? A. Yes, sir. "Q. And still in the face of that you did go "As to having slipped on that ground before, will say that it is true that I had removed and put back a large number of wheels during the months that I had been working there, and I had never slipped or hurt myself before this time, in removing wheels. I had never seen anybody slip and hurt themselves during that time, either while rolling out wheels. I have seen fellows get hurt there of course, but I have never seen them get hurt removing wheels that I know of. "As tank foreman of that company it was not part of my duty to see that the pits were kept free from water, and it was not a part of my duty to see that the ground around there where I had to work was in proper condition. I had nothing to do with that. I was supposed to tell the foreman if there was anything defective; they had a bulletin paper there that said 'Please notify your foreman.' Yes, sir; I told the foreman, Mr. Varley, that the pit was full, or partially full, of water, and that the drainpipe in the bottom was clogged up. I not only told him myself, but several others told him also. I know of my own personal knowledge that others told Mr. Varley about this pit not being drained. When I notified Mr. Varley about the condition of the pit, he simply said, 'Well, I will see,' and that is all the information that I got out of him. But when the foreman, Mr. Varley, told me that, I thought that he would fix it. At that time that day that I went to roll those wheels out, I did | gated by the federal Employers' Liability not know, and I did not have any idea that I would get hurt by slipping on that ground." [2, 3] It is well settled by the authorities that where the servant of a railway company is injured in the performance of a duty pertaining to interstate commerce, the state statutes, abrogating the defense of assumed risks under the common law, do not apply, but the federal statutes and decisions govern. also well settled that the federal Employers' Liability Act (Act Cong. April 22, 1908, c. 149, 35 Stat. 65 [U. S. Comp. St. 1916, §§ 8657-8665]) has not abrogated the defense of assumed risks under the common law, but that such defense is still applicable. It is [4, 5] The common-law rule controlling in such cases was announced by our Supreme Court in T. & N. O. Ry. Co. v. Bingle, 91 Tex. 288, 42 S. W. 971, in the following lan guage: "The servant by entering the employment of the master assumes all the ordinary risks incident to the business, but not those arising from the master's neglect. It is the duty of the master to exercise ordinary care to furnish him a safe place in which to work, safe machinery and appliances, to select careful and skillful co-workers, and in case of a dangerous and complicated business to make such reasonable rules for its conduct as may be proper to protect the servants employed therein. The servant has the right to rely upon the assumption that the master has done his duty; but if he becomes apprised that he has not and learns that the machinery is defective, the place unnecessarily dangerous, or that proper rules are not enforced, he assumes the risk incident to that condition of affairs, less he informs the master and the latter promises to correct the evil. In this latter event, so long as he has reasonable grounds to expect and does expect that the master will fulfill his promise, he does not by continuing in the employment assume the additional risk arising from the master's neglect. If he then be injured by reason of that neglect, he may recover, provided it be found that a man of ordinary prudence under all the circumstances would have encountered the danger by continuing in the service. This we understand to be the rule in the English courts. Act, but is applicable in cases where an employé seeks to recover for an injury while he is engaged in the handling of interstate commerce, see Freeman v. Powell, 144 S. W. 1033; T. & P. Ry. Co. v. White, 177 S. W. 1185; Seaboard Air Line Ry. Co. v. Horton, 233 U. S. 492, 34 Sup. Ct. 635, 58 L. Ed. 1062, L. R. A. 1915C, 1, Ann. Cas. 1915B, 475; Pedersen v. Railway Co., 229 U. S. 146, 33 Sup. Ct. 648, 57 L. Ed. 1129, Ann. Cas. 1914C, 153. [6] It will be noted in the testimony of the plaintiff, set out above, that when he notfied Mr. Varley, the foreman in charge of the roundhouse, of the accumulation of water in the pit, he simply replied, "Well, I will see," and that was all the information he received from Mr. Varley concerning the condition complained of. We conclude that such language used by Varley was insufficient as a matter of law to support a finding of a promise to remedy the slippery condition of the floor of the pit, and thereby to bring plaintiff's case within the exception to the general rule of assumption of risks, noted in the quotation from Railway Co. v. Bingle, supra. See, also, G., H. & S. A. Ry. Co. v. Drew, 59 Tex. 10, 46 Am. Rep. 261. [7] Furthermore, plaintiff filed no reply whatever to defendant's plea of assumed risk by reason of plaintiff's knowledge of the slippery condition of the floor of the pit and of the risk incident thereto prior to and at the time he undertook to move the trucks, and there was no pleading of either party preun-senting the issue of any promise of the master to remedy the slippery condition of the pit, and that the plaintiff relied upon such promise, and was thereby induced to continue in the master's employment after knowledge of such dangerous condition of the pit. Such a promise would have been in the nature of a confession and avoidance, and it was plaintiff's duty to plead it if he intended to invoke relief by reason thereof. Further still, the trial court did not submit to the jury any issue to bring the case within the exception to the common-law rule, nor did plaintiff request the submission of such an issue, nor has he filed any briefs in this court suggesting any reason why the case would come within the exception noted. It is the rule in the Supreme Court of the United States, and is supported by the weight of authority." For other decisions in which the commonlaw rule so stated was applied in cases where no question of interstate commerce was involved, see Texas & Pacific Ry. Co. v. Lewis, 133 S. W. 1086; Houston & Texas Central Ry. Co. v. Alexander, 102 Tex. 497, 119 S. W. 1135; G., C. & S. F. Ry. Co. v. Huyett, 99 Tex. 630, 92 S. W. 454, 5 L. R. A. (N. S.) 669; St. L. S. W. Ry. Co. v. Hynson, 101 Tex. 546, 109 S. W. 929. For decisions holding that the commonlaw rule of assumed risk has not been abro In view of what we have said it follows that the assignment of error now under discussion should be sustained, and by reason thereof the judgment of the trial court should be reversed, and judgment should be here rendered in favor of the appellant without reference to other assignments, which, therefore, it will be unnecessary to discuss; and it is so ordered. Reversed and rendered. surance against loss to or damage of the au DREW v. AMERICAN AUTOMOBILE INS.tomobile by collision, and that said policy was CO. (No. 8908.) (Court of Civil Appeals of Texas. Ft. Worth. 1. JURY 34(3) IMPAIRMENT OF RIGHT EVIDENCE-QUESTIONS OF FACT. A strong preponderance of evidence on one side or the other is not sufficient to justify a trial court in denying the right of trial by jury. 2. JURY 34(3) IMPAIRMENT OF RIGHT EVIDENCE-QUESTIONS OF LAW AND FACT. In view of Const. art. 1, § 15, preserving the right to jury trial, and Vernon's Sayles' Ann. Civ. St. 1914, art. 2024, limiting the number of new trials, it is the province of the jury to determine the credibility of witnesses and the weight of testimony, and the court may not assume its functions by deciding that testimony is entitled to no credit because overborne by contradictory testimony, or that it is so contradictory to circumstances and proof as to be improbable. 3. INSURANCE 668(3)—ACTIONS ON POLICY -CANCELLATION OF PROVISIONS-QUESTION OF FACT. In a suit on an automobile insurance policy, where the car was destroyed in a collision, evidence as to whether or not, subsequent to the issuance of the original policy, the collision features therein had been canceled by mutual agree ment between insured and insurer, held in conflict, and to make a question for the jury. in full force and effect in all of its provisions at the time of E. A. Jackson's death; that E. A. Jackson was killed on said April 24, 1916, by reason of being run into and over by a railroad train, and that in said accident the automobile, in which he and his wife were riding and upon which the policy had been issued, was destroyed. She further alleged said automobile, at the time of said collision and destruction, was of the reasonable value of $1,500, and was at said time owned by E. A. Jackson, and that all the conditions required by the terms of said policy had been duly performed; that thereupon defendant became liable to plaintiff for the value of the automobile so destroyed, and had refused to pay for same. Defendant answered by general demurrer; and further pleaded that, while it had issued the policy upon the automobile in question, and said policy contained a provision of insurance against loss by reason of a collision, yet that subsequent to the date of its issuance E. A. Jackson had declined to accept the policy with the clause and provision as to the insurance against loss or damage by collision, and had requested that that feature of the policy be eliminated and canceled, and that he be allowed credit for the amount of the premium charged for this particular feature of the insurance, to wit, $67; that thereupon the defendant did cancel said feature and provision of the policy, and did give said Jackson credit for the $67 charged therefor, and that the "rider" providing for the insurance against loss or damage by collision was removed from the policy by Jackson's agent, and returned to defendant's agents; that both the defendant's agent, C. H. Walton, and the insured and his agent, believed and understood that the "rider," reSimpson & Estes and A. L. Moore, all of Ft. moved and separated from the policy, conWorth, for appellant. Appeal from District Court, Tarrant County; Bruce Young, Judge. Action by Mrs. S. M. Drew, administratrix of the estate of Mrs. Willie Mae Jackson, against the American Automobile Insurance Company. From an instructed verdict for defendant, plaintiff appeals. Reversed and remanded. tained the only provision as to insurance J. W. Kearby, of Ft. Worth, for appellee. against collision, and that it was the inten tion of both the insurer and the insured that BUCK, J. Mrs. S. M. Drew, administra- the feature of insurance against collision trix of the estate of Mrs. Willie Mae Jackson, should be canceled, and that the defendant filed suit against the American Automobile company would not be liable for any loss Insurance Company of St. Louis for recovery suffered by said Jackson under the collision under a policy issued on an automobile own- feature of said policy. It was further alleg ed by E. A. Jackson, the husband of Mrs. ed that the provision as to insurance against Willie Mae Jackson. Plaintiff alleged that loss or damage by collision, contained in the she was the duly appointed administratrix regular form of the policy, and not included of the estate of Mrs. Jackson; that E. A. in the "rider" which had been attached, at Jackson died April 24, 1916, and that his the time of issuance, to said policy and therewife, Mrs. Willie Mae Jackson, died subse- after removed, was overlooked by both the quent to his death; that E. A. Jackson died insured and his agent, and the insurer's intestate, and that his wife was his sole heir, agents, and all parties understood and beand that subsequent to the wife's death plain- lieved that the written contract, as it appeartiff was appointed administratrix of her es-ed after the removal of the "rider," contained tate; that on March 29, 1916, the defendant no collision insurance; that the defendant issued to E. A. Jackson its certain policy of ratified and affirmed the action of its agents insurance, providing, among other things, in- upon this understanding and belief. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |