
    WIRTZ v. GALVESTON, H. & S. A. RY. CO.
    
    (Court of Civil Appeals of Texas.
    Nov. 22, 1910.
    Rehearing Denied Dec. 15, 1910.)
    1. Master and Servant (§ 205) — Injury to-Servant — Assumption op Risk.
    A servant when entering the employment may rely on the assumption that the machinery, tools, and appliances and the place where he is to work are reasonably safe, and he need, not use ordinary care to see whether the master has performed his duty, and he does not assume the risks arising from a failure of the-master to do his duty, unless he knows of the failure and the attendant risks, or in the ordinary discharge of his duty must have acquired the knowledge.
    [Ed. Note. — For other cases, see Master and' Servant, Cent. Dig. §§ 547-549; Dec. Dig. §■' 205.*]
    2. Appeal and Error (§ 1064) — Harmless Error — Erroneous Instructions.
    Where a switchman injured by stepping into a ditch in the yard while at work admitted, that he knew of the habit of the company to construct temporary ditches to drain the yard, and had known of the existence of the ditches during the time he had worked in the yard, about two years, the error in a charge that he-assumed the risk, if by the exercise of ordinary care he ought to have known that the ditch was there, was not prejudicial to him.
    [Ed. Note. — Eor other cases, see Appeal and Error, Cent. Dig. §§ 4221-4224; Dec. Dig. § 1064.]
    3. Master and Servant (§ 293) — Injury to Servant — Negligence—Instructions.
    An instruction, in an action for injuries to • a switchman, that if the company graded and drained the yard in which the accident happened in the manner in general use, and approved by other standard railroads in yards of similar character, the failure of the company to adopt some other and untried system of drainage was not negligence, was erroneous as-making the method of draining adopted by railroads generally the standard of ordinary „ care, regardless of whether such method would be adopted by a person of ordinary prudence under the circumstances.
    [Ed. Note. — For other cases, see Master and'Servant, Dee. Dig. § 293.]
    4. Appeal and Error (§ 742) — Assignments of Error — Rules of Court.
    Under court rule 30 (94 Tex. 660, 67 S. W. xvi), requiring each point under each assignment to be stated as a proposition, unless-the assignment shall sufficiently disclose the point, and rule 31, providing that to each of the propositions there shall he subjoined a brief statement of such proceedings contained in the record as will be sufficient to explain and support the proposition, an appellant challenging the correctness of an instruction must follow the assignment or proposition with a sufficient statement of the evidence with reference to the pages of the record as may be necessary to show not only that the charge-was unwarranted by the facts proved, but that it probably operated to bis prejudice, and, unless he does so, the assignment will not be considered.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3000; Dec. Dig. § '¡'42.]
    5. Master and Servant (§ 217) — Injury to Servant — Assumption oe Risk.
    A switchman working in railroad yards who knows of defects in the tracks, or who, in the exercise of ordinary care, in doing his work must have known thereof, and who knows of the attendant dangers, assumes the risk.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 574-600; Dea Dig. § 217.]
    Appeal from District Court, Colorado County; Mumford Kennon, Judge.
    Action by W. J. Wirtz against the Galveston, Harrisburg & San Antonio Railway Company. From a judgment for defendant, plaintiff appeals.
    Affirmed.
    Adkins & Green, for appellant. Baker, Botts, Parker & Garwood and W. B. Garrett, for appellee.
    
      
      For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep’r Indexes-
    
    
      
       Writ of error denied by Supreme Court.
    
    
      
       For other oases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep’r Indexes
    
   McMEANS, J.

The following statement of the nature and result of the suit made by appellant in his brief is substantially correct, and is adopted.:

“Suit by W. J. Wirtz, appellant, against the Galveston, Harrisburg & San Antonio Railway Company, appellee, to recover damages for personal injuries alleged to have been caused by the negligence at night on the morning of the 10th day of July, 1906, while engaged in his duties as a switchman for defendant in its yard at Glidden. Briefly stated, plaintiff alleges that there were a great many switch tracks running east and west in a general parallel direction to each other with intervening spaces of a few feet between them, over and upon said yard; that said yard was flat, and that temporary ditches or trenches were constructed at different places at different times to carry off rainfall water, as occasion required, under the tracks to the spaces between, then down such spaces until other low places would cause the pooling of the water, when trenches would be cut from such pools under tracks onto and down the spaces opposite thereto, and so on until the water from these different pools would reach a big ditch northeast of the entire yard; that sometimes these ditches or trenches were negligently not refilled, hut left to be refilled by the operation of time, until they would at times degenerate into short spaces or holes; that, notwithstanding plaintiff knew it was the habit of defendant to negligently construct said temporary drainage ditches at various places over and upon its yard generally, he did not know the exact location of any of them; that with the yard in this condition and about 4 o’clock in the morning, while it was dark and while he was standing at the east end of track No. 4, at the point where it leaves the lead, a train came in from the east with a disabled car attached to the rear end thereof, the drawhead on the rear end thereof being defective; that while the train passed down track 4 he was ordered by his foreman to proceed down the track to where said car had stopped and to pull out said defective drawhead, in order that said switch engine might couple onto to it with a chain and remove it to another part of the yard; that, in obedience to said order, plaintiff proceeded along the space north of track 4 until opposite the east end of said ear when he stepped onto the track, and was directed, required, permitted, and ordered by his foreman to take hold of said defective drawhead and to pull it out of its encasement, and that he attempted to do so in the usual and customary manner and in the way in which he was instructed by his foreman; that because of some defect the drawhead yielded only partially, which, being overcome, said draw-head slipped nearly out of its encasement so suddenly and with such force as to push plaintiff backward and into a small unfilled ditch between the rails of defendant’s track some few feet Immediately to his rear, by reason of which he lost his balance, and he was forced to sustain the weight of the draw-head as it dropped to the front down upon him, mashing him down and doubling him up, whereby he received his injuries; that it was at night and dark, and plaintiff could not have seen said ditch, and he did not. know the exact location of same, or that the car had been stopped in such close proximity thereto, and could not, by the exercise of ordinary diligence, have known same, charging that defendant was negligent in the following respects: In failing to furnish him a safe place at which to work, in leaving said open ditches over and about its yard, in leaving open the ditch into which plaintiff stepped, in leaving said ditches uncovered, in stopping the end of the car, at which plaintiff was ordered to work, so near to said open ditch as to render it probable that plaintiff might step into same and become injured, and in failing to notify plaintiff of the existence of the ditch, and that said car had been stopped in such close proximity thereto and of the dangers surrounding plaintiff in pulling out said drawhead. Defendant answered by general demurrer, special exceptions, general denial, pleas of contributory negligence and assumed risk, that, if plaintiff was injured, his injuries were slight, and that, if he is now suffering, it is caused by disease with which he was afflicted before his said injuries, and again, if he was injured, it was the result of an accident. Trial was had before a jury, who returned a general verdict for defendant, upon which judgment was entered, and from which appellant prosecutes this appeal.”

Appellant’s fourth assignment of error is as follows: “The court erred in giving the seventh paragraph of its charge to the jury as follows: ‘While the plaintiff assumed the risk of removing the drawhead in the manner in which he attempted to remove it, you are to determine whether he assumed the risk, if any, of attempting to remove it at a place where a trench or ditch, if there, was across or partially across the track near the place where he was'at work. So far as assumed risk is concerned, if the plaintiff knew the trench, if there, was at the place where he was at work, or if you find that the plaintiff was familiar with defendant’s yard and tracks at Glidden, and you further find that there were shallow ditches or trenches about in said yard, made for the purpose of draining said yard, as alleged by plaintiff, or in the exercise of ordinary care in doing his work in said yard, he ought to have known the same, and you further believe from the evidence that by reason of said ditches or trenches in said yard, if there, there was a risk or danger to employes in doing their work in said yard in the usual and customary way, and that under all the circumstances the plaintiff ought to have known and understood such risk or danger, if any, of doing the work at the place and in the manner shown by the evidence, and you further find that the existence of the ditch or trench in question, if there, was the proximate cause of said accident and injury, if any, then, under such circumstances, the plaintiff assumed the risk, and you will find for the defendant, unless you further find from the evidence that defendant or a superior intrusted by the defendant with authority to remedy the defect, if any, already knew of such defect, or unless you find from the evidence that a person of ordinary care would have continued in the service with the knowledge of the defect and danger, if any, and, if you so find, then under the law the plaintiff did not assume the risk, if any, of such defect, if any.”

The first, second, and third propositions urged by appellant under this assignment, criticising the charge complained of, are without merit, and are overruled without further comment. The fourth proposition assails that portion of the charge which instructed the jury upon the issue of assumed risk that if they found from the evidence that plaintiff knew that the trench, if there, was at the place where he was at work, or 'if they found that plaintiff was familiar with defendant’s yard and track, and that there were shallow ditches or trenches about in said yard, made for the purpose of draining the yard, as alleged by plaintiff, or in the exercise of ordinary care in doing his work in said yard, he ought to have known the same, and if the jury further believed from the evidence that by reason of said •ditches or trenches in said yard, if any, there was a risk or danger to employés doing their work in said yard in the usual or customary way, and that under all the circumstances plaintiff ought to have known and understood such risk or danger of doing the work at the place and in the manner shown by the evidence, and that the existence of the ditch or trench in question, if any, was the proximate cause of the injury, if any, then under such circumstances the plaintiff assumed the risk, etc. Appellant contends that so much of the charge as' charged him with knowledge of the existence of the particular trench into which he alleged he stepped if in the exercise of ordinary care he should have known of them stated an erroneous and improper rule of law. The charge in this particular is abstractly incorrect. We understand the. law to be that, when the servant enters the employment of the master, he has the right to rely upon the assumption that the machinery, tools, and appliances with which he is called upon to work, and the place where such work is to bq performed, are reasonably safe, and that the business is conducted in a reasonably safe manner. He is not required to use ordinary care to see whether the master has performed his duty in the regard mentioned. He does not assume the risks arising from a failure of the master to do his duty, unless he knows of the failure and the attendant risks, or in the ordinary discharge of his duty must necessarily have acquired the knowledge. Railway v. Hannig, 91 Tex. 350, 43 S. W. 508; Bonnet v. Railway, 89 Tex. 72, 33 S. W. 334; Railway v. Bingle, 91 Tex. 287, 42 S. W. 971; Railway v. Tuck, 123 S. W. 406; Railway v. Warner, 22 Tex. Civ. App. 167, 54 S. W. 1067.

So much of the charge as told the jury that he assumed the risk, if by the exercise of ordinary care he ought to have known of the existence of the trenches, was erroneous, and should not have been given. But, in view of the pleadings of the plaintiff and the undisputed testimony, we cannot say that the erroneous charge was so prejudicial to plaintiff as to require a reversal of the judgment against him. He .admits in his petition that he “knew it was the habit of defendant to negligently construct said temporary drainage ditches at various places over and upon its yards generally,” and unequivocally testified that he knew of their existence and had so known during the time he worked in the yard, which covered a period of two years. In view of this evidence, a charge that he assumed the risk, if by the exercise of ordinary care he could have known that the trenches were there, could not have misled the jury or otherwise operated to his prejudice. The assignment is overruled.

Appellant’s eighth assignment is as follows: “The court erred in giving defendant’s special charge No. 7, as follows: ‘If the jury should believe and find from the evidence that the defendant company had its switching yard at Glidden graded, and had said yard drained in the manner and according to the methods in general use and approved by other standard railroads in yards of similar character as the switching yard at Glidden, then the failure of the defendant company to adopt some other and different and untried system of drainage would not be such an act as would made the company liable for an accident that might be due to the failure on the part of the company to adopt some other new method of drainage not in general use by other railroads in similar yards.’ ” This charge in effect was an instruction that the railway company was not negligent in the method adopted by it for draining the yard, if such method was the same as that adopted and approved by other railroads in. similar yards, thereby making the method of draining adopted by railroads generally the standard of ordinary care, regardless of whether such method would be adopted by a person of ordinary prudence under the same circumstances. Charges similar to this have been repeatedly condemned. Railway v. Smith, 87 Tex. 357, 28 S. W. 520; Railway v. Compton, 75 Tex. 671, 13 S. W. 667; Railway v. Evanisch, 61 Tex. 5; Railway v. Duncan, 88 Tex. 614, 32 S. W. 878; Kirby Lumber Co. v. Dickerson, 42 Tex. Civ. App. 504, 94 S. W. 156.

We do not see that such a charge could be' applicable to any phase of the case as made by the-pleadings of the parties. However that may be, it is incumbent upon appellant to show by a proper statement in his brief that the charge complained of is not only incorrect in the abstract, but that it probably operated to his prejudice in the trial. The only statement subjoined to the assignment and proposition under consideration is that “the court gave the special charge complained of in this assignment, which is referred to.” Rule 30 (94 Tex. 660, 67 S. W. xvi) requires that each point under each assignment shall be stated as a proposition unless the assignment shall sufficiently disclose the point, and rule 31 provides that to each of said propositions there shall be subjoined a brief statement, in substance, of such proceedings, or part thereof, contained in the record as will be necessary and sufficient to explain and support the proposition with reference to the pages of the record. Following an assignment or proposition challenging the correctness of a charge, the appellant should make á sufficient statement of the evidence, with reference to the pages of the record, as may be necessary to show, not only that the charge was not warranted by the facts proved, but that it probably operated to his prejudice. There is nothing stated under this proposition, or, for that matter, anywhere in appellant’s brief, to show that appellant was injured in the manner alleged in his petition or because of any negligent act or omission charged against the railway company, or even to show that he had received the injuries for which he sued. For aught that appears in any statement made In the brief, there may have been no trench at the place where he was at work when he claimed he was hurt, or, if there, that he did not step in it, or that his injuries, if he received any, were not caused in some manner other than that alleged by him. The absence of a proper statement leaves us to conjecture upon the probable effect of the charge, or else requires us to go to the record, and to there search for some fact proved which would render the charge complained of not only inapplicable, but prejudicial. This we are not required by the rules to do. Because of the absence of a sufficient statement following the proposition urged, we think we are warranted in refusing to consider the assignment. What we have said above applies also to appellant’s first, second, third, fifth, seventh, and tenth assignments of error and the several propositions under each.

The appellant by his ninth assignment of error complains of the action of the court in giving the following special charge at the instance of defendant: “The jury is instructed that it was the duty of the plaintiff in doing his work to exercise ordinary care for his own safety and protection. If you should find that the defendant’s track at said place was defective, and that it was due to the failure of the defendant to exercise ordinary care to have the same reasonably safe, yet if you should also find and believe from the evidence that the defective condition of the track, if you find it was defective, was known to plaintiff, or in the exercise of ordinary care in doing his work he must have known the same and its attending danger, if any, and his injury, if any, was the proximate result of his failure to exercise that care for his own safety and protection that a person of ordinary care and prudence would have exercised under the same circumstances, then, in such case, the plaintiff would not be entitled to recover, and, if you so find, you will return a verdict for the defendant company.” Under this assignment appellant presents the following proposition: “The servant has a right to assume that the master has placed him at a safe place to perform the duties required of him, and he is not required to inspect or to use ordinary care in doing his work to see that this duty has been performed, and can only be held to have assumed the risk if he knows of such failure as well as the risks attending same, or in the ordinary discharge of his duties must necessarily have acquired such knowl-ledge.” We think the charge substantially meets the objection urged against it. Appellant contends that the correct rule is that the appellant assumed only such risks as were known to him, or which in the ordinary discharge of his duties he must necessarily have known, and the' charge complained of states the rule to be that, if plaintiff knew the defects in the track or in the exercise of ordinary care in doing his work he must have known the same and the attendant danger, he assumed the risk, etc. The assignment is overruled.

We have examined all the other assignments presented by appellant in his brief, and find no reversible error in any of them. The judgment of the court below is affirmed.

Affirmed.  