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From a judgment in favor of plaintiff, de- territory, and making corporations liable for fendant appeals. Affirmed.

injuries to servants, caused by the negligence

of fellow servants of whose incompetency or J. W. Terry and A. H. Culwell, for appel- negligence the corporation has had previous nolant. Hale, Allen & Dohoney, for appellee.

tice, do not change the common-law rule re

quiring the master to inspect and examine inFISHER, C. J. The questions of fact and

strumentalities furnished by him, and making

him responsible for the negligence of an inlaw raised in this case are substantially the

spector to whom he intrusts the duty of making same as those passed upon in the case of inspection. Gulf, Colorado & Santa Fé Railway Com- | 4. SAME - NEGLIGENCE-QUESTION FOR JURY. pany v. F. Harbison (recently decided by Whether an inspector was negligent in inthis court) 88 9. W. 452, and in which the

specting cars, or whether he negligently failed

to make an inspection, are questions of fact ruling of this court is against the proposi- for the jury, notwithstanding testimony of the tions urged by the appellant.

inspector that he made a proper inspection. We find no error in the record, and the

5. SAME-INSTRUCTIONS. judgment is affirmed.

In an action against a railroad for injuries

to a brakeman who fell from the side of a car Affirmed.

because of the giving away of a defective hand railing, a charge to find for defendant if plaintiff attempted to board the car and ride at

some place other than the stirrup and grabGULF, C. & S. F. RY. CO. v. QATES. iron provided for that purpose, and if his fail

ure to do so was negligence, and such negli(Court of Civil Appeals of Texas. June 28, gence caused or contributed to his injury, or 1905.)

if he was negligent in the manner in which he

attempted to get on the car, and such negliAppeal from Lamar County Court; John

gence contributed to his injury, or if he attemptW. Love, Judge,

ed to catch the railing while the car was in moAction by A. T. Oates against the Gulf,

tion, and attempted to hold himself by the rear Colorado & Santa Fé Railway Company.

end thereof and by placing his foot on some

part of the truck, and in so doing was guilty of From a judgment in favor of plaintiff, de- negligence, and such negligence contributed to fendant appeals. Affirmed.

his injury, was confusing and misleading, in

that plaintiff's actions in the particulars reJ. W. Terry and A. H. Culwell, for appel

ferred to, if negligent, necessarily contributed to lant. Hale, Allen & Dohoney, for appellee. his injury, and whether they did so contribute

or not should not have been submitted to the KEY, J. This case is quite similar to jury as a question of fact. Railway v. Harbison, 88 S. W. 452, and Rail- 6. SAME-INSPECTION BY SERVANT. way v. Wetherly, 88 S. W. 456, recently

A railroad brakeman is under no duty to

inspect a car on which he is working, in order decided by this court; and, for the reasons

to ascertain whether parts thereof, such as hand stated in the opinion in the Harbison Case, rails, are unsafe for his use. the judgment in this case is affirmed.

[Ed. Note. For cases in point, see vol. 34, Affirmed,

Cent. Dig. Master and Servant, 88 710, 713,
714, 718.)
7. SAME-ASSUMPTION OF RISK.

The mere knowledge by a servant of a danEL PASO & S. W. RY. CO. v. VIZARD.* ger does not charge him with assumption of the

risk thereof, unless he understood and appre(Court of Civil Appeals of Texas. May 24,

ciated such risk. 1905.)

[Ed. Note.--For cases in point, see vol. 34, 1. PERSONAL INJURIES-PLEADING.

Cent. Dig. Master and Servant, $8 574-581.] A petition alleging that plaintiff fell with great force and struck his back and spine on

8. SamE-QUESTION FOR JURY. some ties, by reason of which he was seriously

Whether a railroad fulfilled its duty of and permanently cut, bruised, and wounded,

inspecting cars by properly inspecting them on

the day before injury to a brakeman was a internally and externally, on his back, spine, legs, hips, and head; that his kidneys and blad

question of fact, where the car in question had der, together with the nerves and muscles con

been moved from one place to another between

the inspection and the injury, and it was shown trolling the same, were seriously injured and affected; that he is a cripple for life, is con

that nuts on the car might become loose in run

ning that distance. fined to his bed, and unable to walk without assistance; and that he believes that his in

Appeal from District Court, El Paso Counjuries are serious and permanent-states the damages which plaintiff has sustained with

ty; J. M. Goggin, Judge. sufficient particularity.

Action by H. D. Vizard against the El [Ed. Note.--For cases in point, see vol. 15, Paso & Southwestern Railway Company. Cent. Dig. Damages, & 410.)

From a judgment for plaintiff, defendant ap2. DEPOSITIONS-NOTICE-SUFFICIENCY.

peals. Reversed. The copy of the notice and interrogatories, required by Rev. St. 1895, art. 2274, to be This is a suit by appellee to recover damserved on the adverse party or his attorney of ages for personal injuries alleged to have record before the issuance of a commission to been caused by the negligence of appellant take depositions need not be certified by the clerk of the district court who makes the same.

while he was engaged in its employ as a 3. INJURY TO SERVANT-INSPECTION BY MAS

brakeman on its road at Osborne, Ariz. He

alleged that, while in the discharge of the Rev. St. Ariz. 1901, pars. 2533, 2767, de- duties of his employment, he fell from the claring the common law to be in force in that

side of a water car by reason of the negli*Rehearing denied June 14, 1905, and application gence of defendant in maintaining thereon for writ of error dismissed by Supreme Court for want of jurisdiction.

TER,

a defective hand railing which gave way cribbing, he then was thrown and fell to in his effort to board and hold on thereby the ground, and by reason of his fall and the car in question. After interposing eight great weight, together with striking his special exceptions, which will be noticed in back and spine on the ends of said ties or our opinion, the defendant answered by a cribbing and other hard substance as he fell general denial and pleas of contributory to the ground, he was seriously and pernegligence and assumed risk. The excep- manently cut, bruised, and wounded, both tions were overruled, and the trial of the internally and externally, in and on his back, case before a jury resulted in a verdict in spine, legs, hips, and head; that also in said favor of the plaintiff for $9,000. From the fall, and by reason of the bruises, injuries, judgment entered on the verdict, this appeal and wounds received on his back, spine, and is prosecuted.

legs, his kidneys and bladder, together with

the nerves and muscles by which the same Patterson, Buckler & Woodson, for appellant. Patterson & Wallace, for appellee.

are controlled, were seriously and permanently injured and affected; a more specific al

legation of his injuries to his back, spine, NEILL, J. (after stating the facts). The leg 3, head, hips, kidneys, and bladder, plainfirst eight assignments of error are directed tiff is now unable to specify, other than that against the action of the court in not sustain- by reason of said injuries received at said ing defendant's special exceptions to plain- time he is now a cripple for life; that on actiff's petition. The substance of these ex- count of said injuries, and more especially ceptions is that the petition does not describe the injuries to his back, spine, legs, bladder, the physical injuries and suffering of plain- | hips, and kidneys, he is now confined to his tiff therefrom with sufficient particularity. bed, unable to walk without assistance; that

In his original petition his injuries and the he has reason to believe, and does believe, effect thereof are thus described: "Plain- and here alleges, that the aforesaid injuries tiff avers and charges that when said hand to his back, spine, legs, hips, kidneys, and rail or hand hold pulled loose and gave way bladder are serious and permanent, and will he was thrown and fell with great force continue serious and permanent the remainand violence, and struck his back and spine der of his life.” on the ends of some ties and cribbing, which We think the allegations thus recited (eswas built near the tracks at this place, on pecially those in the trial amendment) conwhich was situated a water tank; that on formn to the rule in cases of this character, account of the fact of striking on the ends which requires the plaintiff to state the parof some ties he was then thrown and fell ticular damage which he has sustained with to the ground, and by reason of said fall, suificient particularity to inform the defendtogether with striking his back on the sharp ant of the facts upon which he intends to reend of some railroad ties and on the ground ly for recovery. This is all that could be and other hard substances, he was greatly, required of plaintiff in this case. T. & P. seriously, and permanently injured in his Ry. Co. v. Curry, 64 Tex. 87; Campbell v. back, spine, legs, head, and internal organs, Cook, 86 Tex, 632, 26 S. W. 486, 40 Am. St. and rendered a cripple for life; that by rea- Rep. 978; Southern Pac. Co. v. Martin (Tex. son of the aforesaid injuries he is now con- Sup.) 83 S. W. 676. fined to his bed, unable to walk, and he has It is to be observed that there is no conreason to believe, and does believe, and here tention on the part of defendant, as was in alleges, that said injuries are permanent; the case last cited, that the allegations were that on account of the aforesaid injuries he not sufficiently specific to authorize the introhas suffered and will continue to suffer dur- duction of all the evidence offered by plaining the remainder of his life great bodily tiff to prove them; but the complaint is as pain and mental anguish, has paid out and to the sufficiency of the petition as against incurred large sums of money for medicine the exceptions urged. The allegations deand medical attention, which sums were scribed, if possible, with more minuti reasonable and necessary, and that his abil- plaintiff's physical injuries and consequent ity to earn a living, on account of the afore- sufferings than is done in the case of Southsaid injuries, has been greatly impaired, and ern Pacific Co. v. Martin, supra. And in will so continue impaired during the remain- that case the Supreme Court remarked that der of his life.”

"the petition entered with a remarkable And in his trial amendment he further de- particularity into the statement of the rariscribes them as follows: "That when said ous injuries which the plaintiff claimed to hand rail or hand hold pulled loose and gave have received in the accident, which were way he was thrown and fell with great force sufficient in number and character to justify, and violence, and struck his back and spine if true, the statement that he was bruised on the end of some ties or cribbing, built and lacerated from head to foot.'" How. and maintained by defendant near the track, ever, notwithstanding the minutiæ with at the place where said accident occurred; which Martin's injuries were described in his that when he fell and was thrown from petition, the court held that evidence of a said car, and after his back and spine had certain injury, not eo nomine mentioned in come in contact with the aforesaid ties or the petition, was erroneously admitted, and

for that reason, not because of any defect will be necessary to briefly state some of the in the petition, reversed the judgment ren- evidence pertinent to them. It will be obdered in his favor. Without pausing to criti- served from the statement of the nature of cise or comment upon such holding of the the case that the accident from which plainSupreme Court in that case, it may be, in tiff claims he was injured occurred at Os. view of another trial, proper to suggest that, borne, Ariz. On the day of its occurrence while we believe every syllable of evidence he was a brakeman on a freight train, which introduced in the instant case by plaintifif picked up a water car on a side track at as to his injuries was authorized by his that place. It was an ordinary flat car with pleadings, it might be well for plaintiff

' by a large metallic tank, such as is ordinarily an amendment to allege and describe with seen and used on railroads, securely fastas much minutiæ as possible the injury to

ened thereon. On each side of the car were his sciatic nerve, evidence of which was in- seven wooden standards about three feet troduced upon the trial.

long, through which were bored holes about The defendant moved to quash the deposi- / six inches from the top ends, through which tions of the witness R. A. Eubank, taken by an iron rod about three-fourths of an inch plaintiff, upon the ground that the commis- in diameter extended from one end of the sion was issued without any legal return car to the other. The distance from this showing the services of notice to take such rod from the ground was about seven feet. depositions. It appears from the record that The rod was fastened at each end on the outthe plaintiff filed with the clerk of the dis- side of the standards by iron nuts screwed trict court, in which this case was pending, thereon. The evidence tends to show that notice of his intention to apply for a com

the nut of the end of the rod at the southmission to take the answers of the witness west corner of the car, as it stood upon the Eubank to interrogatories attached to said track at the time of the accident, was off. notice, in compliance with the provisions of There is a conflict in the testimony as to article 2274, Rev. St. 1895; that upon the the office or use of this rod; some of the day such notice and interrogatories were

witnesses testifying that its purpose was to filed the clerk of the court made copies there- enable trainmen or brakemen to mount and of and issued his precept, and placed it, to

hold onto the car, and that it was ordinarily gether with said copies, in the hands of the used for such purpose, and, when in proper sheriff, requiring him to serve the same up- fix, it was reasonably safe for such use; on the defendant or its attorney of record,

others testified that it was intended for no as required by the article referred to; and such purpose or use, and that such use that such copies of the notice and interroga- would be fraught with exceeding danger, and tories were served by the sheriff upon the de- its only office was to furnish a hand hold fendant as required by law, by delivering for trainmen in passing from one car to such copies, together with a true copy of

another when the train was in motion. This the precept, to its local agent in El Paso car, as all water cars on defendant's road, county. The real objection urged by defend- had a stirrup on the southeast corner, as it ant in its motion to quash the depositions is then stood on the track, and one on the that the copy of the notice of plaintiff's in- northwest corner diagonally opposite. The tention to apply for a commission to take stirrup extended down from a foot to 16 the answers of the witnesses to the inter- inches from the platform at the corner, and rogatories attached was not certified to by at the right end of each corner mentioned the clerk of the district court who made such there was a grab-iron on the end of the car copy, as well as the copy of the interroga- just to the right of the stirrup, and one also tories, and delivered the same with the pre- on the standard just to the left of the stircept to the sheriff for service. There is no rup. There was testimony to the effect that force in this objection, for the law does not the proper and usual way for a brakeman require that the copy of such notice served or trainman in getting on the car was to on the adverse party should be certified to catch hold of the grab-iron and put his foot by the clerk. Service of a copy was all that in the stirrup so as to hold himself on. And was required, and there is no contention on there was testimony to the effect that plainthe part of defendant that it was not served tiff should have pursued this method of getwith a true copy thereof, as is shown by the ting on the car. But, according to his testisheriff's return on the precept. Therefore mony, after the water car was picked up, the court did not err in overruling defend- and as it passed him moving easterly, he ant's motion to quash the depositions.

caught hold of the rod before mentioned at As we will reverse the judgment on other the southwest corner and placed his foot on assignments, it will be unnecessary, if not the journal, which is a part of the truck, improper, in view of another trial, to discuss and, just as he pulled himself up, the rod the twelfth assignment of error, which com- pulled loose from the standard, and he was plains of the court's refusing to grant de- thrown, and fell backward on the end of fendant's motion for a new trial upon the some ties or cribbing. Defendant's car inground that the verdict is excessive.

spector testified that, on the afternoon of To understand the next assignments, and the day before the accident, he inspected the what we shall say in disposing of them, it car in question at Douglas, and put a new washer and put on the southeast corner, the failure of an employé to use ordinary and, with that exception, there was nothing care in the performance of a duty which is whatever wrong about the car; that, his at. personal to the master and be is bound to tention being directed to the car on the aft- perform. But we think that the evident Cenon of the day after he inspected it, be purpose of the statutes was simply to abrofound the hand rail at the southwest corner gate the common-law doctrine of a fellow of the car a little swagged, and the put off' servant, and hold the master, when a corpoof its end.

ration, liable for the consequences of the Paragraph 2733, Rev. St. Ariz. 1901, is as negligent act of a fellow servant, of whose follows: “The common law as now pre- | incompetency, carelessness, or negligence utibed and understood, shall in its applica- such corporation had previous notice. The tion be followed and practiced by the courts case of Gila Valley, G. X. & R. Co. v. Lyon of this territory, so far as the same may not (Ariz.) 71 Pac. 957, relied upon by counsel be inconsistent with this title." And para. for defendant, is not in coniict with the graph 2767, adopted in March, 1901, is as fol. views we have expressed. It does not unJows: "Every corporation doing business in dertake to construe the statute in question, the territory of Arizona shall be liable for but is simply a case where a serrant of a all damages done to any employee in conse- railway company was injured by the negliquence of any negligence of its agents or gence of a fellow servant in failing to disemployees to any person sustaining such charge a duty not personal to the master. damage, provided such corporation has bad Therefore we overrule appellant's thirteenth previous notice of the incompetency, care- and fourteenth assignments of error. lessness or negligence of such agent or em- The logical sequence of our ruling on the ployee." In the fifth paragraph of its last two preceding assignments is that, if charge the court instructed the jury that the the hand hold gave way because the nut had car inspectors employed by the defendant come off its end, and its absence was due to company were not the fellow servants of the negligent failure of defendant's inspector plaintiff, but that the acts or omissions of to properly inspect it, appellant would be such car inspectors, if any, would be the liable to plaintiff for any damages sustained acts or omissions of the defendant company. as the proximate result of such negligence, The defendant by its attorneys requested the unless he himself was guilty of contributory court to instruct the jury that, under the negligence. The question as to whether provisions of paragraph 2767 of the Revised there was a negligent inspection, or a fail. Statutes of Arizona, plaintiff and defend- ure to inspect, was one of fact for the jury, ant's car inspectors were employés of de- notwithstanding the inspector testified that fendant at the time of the accident, and, if he made the proper inspection; for the jury plaintiff was injured through the negligence may have not, in the light of the facts and of any car inspector of defendant, to return circumstances, believed such testimony. a verdict in its favor. The giving of the Therefore the court did not, as is complained fifth paragraph in the court's general charge, in the fifteenth assignment, err in submitand the refusal to give defendant's special | ting such question of fact to finding of the charge above referred to, are assigned as er- jury. rors.

One of the principal issues in the case was At common law the master is personally whether the defendant was guilty of neglibound from time to time to inspect and ex- gence in attempting to get on the car by amine all instrumentalities furnished by catching the hand rail and placing his foot him, and to use ordinary care, diligence, and on the journal or some part of the trucks, skill to keep them in good and safe condi- instead of using the stirrup and grab-irons tion. The duty of inspection is affirmative, on the southeast corner of the car. Upon and must be continuously fulfilled and posi- this issue the testimony is so conflicting as tively performed. It being a duty devolv- to make it very sharp and difficult to detering upon the master personally, it cannot be mine on which side the truth lies. In subby him delegated to any agent, so as to re- mitting it, the court, in the tenth paragraph lieve him from personal responsibility. A of its charge, instructed the jury as follows: car inspector is the master's alter ego, and "If you believe from the evidence that his failure to exercise ordinary care in in- said water car was equipped with a stirrup specting and examining instrumentalities and hand hold near one of its ends upon furnished by him to his servants with which which plaintiff boarded it, and that the said to do their work is negligence of the master, band hold or grab-iron was affixed to one and not the negligence of a fellow servant. of the upright posts supporting the aforeShearman & Redfield, Neg. $$ 1941, 204, and said hand rail, but that the plaintiff attempt205. Though plaintiff and defendant's car ed to board said car or hold the side of inspector were each employés of the defend- same and ride at some place other than at ant, it is not believed that it was the pur- said stirrup and grab-iron, if any, and that pose or intention of paragraph 2767, Rev. the plaintiff, in boarding said car and catchSt. Ariz. 1901, above quoted, to abrogate the ing hold of the side of same tọ ride, should common-law principles referred to by ex- have done so by using the said stirrup and empting the master from the consequence of grab-iron situated upon said upright post, if

mus

any, and that his failure so to do was negli- v. I. & G. N. Ry. Co., 90 Tex. 634, 40 S. W. gence on his part, and that such negligence, 386 ; Ebert v. G., C. & S. F. Ry. (Tex. Civ. if any, caused or contributed to cause his in- App.) 49 S. W. 1105; G., U. & S. F. Ry. v. jury, then and in that event your verdict Bryant (Tex. Civ. App.) 66 S. W. 808; G. should be for the defendant. If you believe H. & S. A. Ry. v. Hubbard (Tex. Civ. App.) from the evidence that the plaintiff attempt- 70 S. W. 112; G., C. & S. F. Ry. v. Hill (Tex. ed to get aboard or catch upon the side of Civ. App.) 70 S. W. 103; G., & S. F. Ry. v. the said water car while the same was mov- Powell (Tex. Civ. App.) 84 S. W. 671. ing, and that he was thrown or fell to the The court did not error in refusing to inground and was injured, but further believe struct the jury, at defendant's request, that from the evidence that in attempting to it was plaintiff's duty to assist the conductor catch upon the side or get aboard of said in inspecting the water car, and that if by car in the place or in the manner he at- the exercise of ordinary care the plaintiff tempted so to do, if he so did, that it was would have discovered the unsafe condition negligence on his part, and that such negll- of the end of the hand rail and that the nut gence, if any, proximately contributed to was off, and that if through his failure to cause his injury, if any, then and in that inspect and examine the car before he atevent your verdi

be for the defend- tempted to use the band rail he was inant. If you believe from the evidence that jured, to find for the defendant. The folthe plaintiff could have caught hold of the lowing quotation from Peck v. Peck, 87 S. engine mentioned in the evidence, or either W. 248, 12 Tex. Ct. Rep. 785, demonstrates of the box cars behind same, or the right the fallacy in the requested charge: “In hand of the first corner of the water car, as Railway v. Hannig, 91 Tex. 350, 43 S. W. the same approached him, or the right hand 508, for instance, a charge was given, in of the corner of the rear box car as the substance, that plaintiff could not recover same approached him, and that a person of for the master's negligence 'if he could have ordinary prudence, so situated as he was, known these facts by the use of ordinary would have so gotten a position upon the care,' which might have meant to the jury cars mentioned in the evidence, and that a that plaintiff was required to make some inperson of ordinary prudence would not have quiry to learn of the danger which the masattempted, as the plaintiff did, if he did, to ter's negligence had created. In commentcatch the railing of the rear end of the wa- ing on this charge, this court used this lanter car while the same was in motion, and guage: 'We understand the law to be that, attempted at the same time to hold him- when the servant enters the employment of self by the use of the rear end of said hand the master, he has the right to rely upon the rail, and by placing his foot upon the jour- assumption that the machinery, tools, and nal box or some other part of the truck, appliances with which he is called upon to and that the plaintiff in so doing was guilty work are reasonably safe, and that the busiof negligence, and that such negligence, if ness is conducted in a reasonably safe manany, proximately caused or contributed to ner. He is not required to use ordinary cause his injury, then and in that event your care to see whether this has been done or verdict should be for the defendant."

not. He does not assume the risks arising The objection urged by appellant to this from the failure of the master to do his part of the charge is that, if the plaintiff duty, unless he knows of the failure and the was guilty of negligence in the matters sub- attendant risks, or, in the ordinary discharge mitted, such negligence necessarily, as is of his own duty, must necessarily have acshown by the undisputed evidence, proxi- quired the knowledge. (Citing Bonnet v. mately contributed to his injuries, and the Railway, 89 Tex. 72, 33 S. W. 334; Railway submission to the finding of the jury wheth- v. Bingle, 91 Tex. 287, 42 S. W. 971.)' If er such negligence of plaintiff, if he was this needed any elaboration, it was furguilty of it, proximately contributed to his nished by the reference to the cases cited injury, was confusing and misleading, and in that opinion, from which is seen that a calculated to destroy the effect of the court's servant must be treated as having 'necescharge as to contributory negligence, and sarily acquired knowledge of those dangers, submitted an issue not made by the evi- although arising from the negligence of the dence, authorizing the jury to say arbitrari- master, which were obvious and open to him ly that plaintiff should not be held to the in the doing of his work ; which, in other consequences of his Own negligence. In words, ordinarily prudent persons would view of the unbroken line of the decisions have learned under like circumstances, in of the appellate courts of this state, we the rendering same service." The principle deem it unnecessary to discuss the assign- is well settled that a master who seeks to ments of error which raise this objection to escape liability to his servant on the ground the portion of the charge just quoted, it be- that he assumed the risk as a part of his ing sufficient to refer to the opinions to contract must lay the foundation for the demonstrate that the objection is well taken. defense by proving that he understood the T. & P. Ry. Co. v. McCoy, 90 Tex, 265, 38 risk, and that the mere knowledge of a danS. W. 36; G., C. & S. F. Ry. Co. v. Row- ger will not preclude him from recovering land, 90 Tex. 365, 38 S. W. 756; Culpepper unless he appreciated the risk. Southern

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