
    ANDERSON v. ST. LOUIS SOUTHWESTERN RY. CO. OF TEXAS.
    (Supreme Court of Texas.
    March 1, 1911.)
    1. Master and Servant (§ 286) — Injuries to Servant — Action—Jury Question.
    ' Testimony by a fence gang foreman in an ■action for injuries sustained in running a hand car through an open switch that he does not believe there was a target on the switch, but that he did not look for or think of one in approaching it, was not sufficient to raise an issue as to the absence of the target, where there was uncontradicted testimony that there was a target on the switch.
    •[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. § 1021; Dec. Dig. § 286.]
    2. Master and Servant (§ 235) — Injuries to Servant — Contributory Negligence— Railroad Bhployé.
    Where plaintiff, a fence gang foreman, after going out of defendant’s yards on a hand car, returned on the same track after a train had passed leaving a switch open, and ran into the open switch and was injured, he was negligent in failing to look out for the open switch in order to protect the men under him and the company’s property as he was bound to do, and could not recover.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. § 710; Dec. Dig. § 235.]
    3. Master and Servant (§ 231) — Injuries— Contributory Negligence.
    An employe may assume that his employer has properly performed his duties, and is not guilty of contributory negligence, unless he knows or ought to have known by the exercise of ordinary care that he is endangered from the employer’s failure to perform his duties.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 675-677; Dec. Dig. § 231.]
    4. Master and Servant (§ 227) — Injuries— Contributory Negligence.
    An employer is not responsible for injuries received by an employé which he would not have sustained but for his own negligence.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. § 668; Dec. Dig. § 227.]
    5. Master and Servant (§ 235) — Injuries— Contributory Negligence — Railroad Em-PLOYÉS.
    While a fence gang foreman in charge of a hand car need only use ordinary care commensurate with the dangers of operating the hand car in yards, the nature of the situation requires him to keep a lookout for open switches so far as he can do so consistent with his other duties while directing the operation of the car, in analogy to the duty of an engineer to keep such a lookout as is consistent with the performance of his other duties.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. § 710; Dec. Dig. § 235.]
    Error to Court of Civil Appeals, Sixth Supreme Judicial District.
    Action by T. J. Anderson against the St. Louis Southwestern Railway Company of Texas. From a judgment of the Court of Civil Appeals (124 S. W. 1002) reversing a judgment for plaintiff and rendering judgment for defendant, plaintiff brings error.
    Affirmed.
    B. Q. Evans, J. P. Copeland, and L. E. Keeney, for plaintiff in error. Glass, Estes King & Buford, E. B. Perkins, and D. Upthe-grove, for defendant in error.
    
      
      For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep’r Indexes
    
   WILLIAMS, J.

A judgment of the district court in favor of plaintiff in error against the defendant in error for damages for personal injuries sustained by him in its service was reversed by the Court of Civil Appeals (124 S. W. 1002) and. final judgment was rendered in favor of defendant, for two reasons: (1) That there was no evidence of negligence. on the part of the defendant; and (2) that the evidence conclusively showed negligence of plaintiff which contributed to his injuries. Of course, one of these propositions must be true to sustain the rendition of final judgment.

The plaintiff was foreman of a fencing gang in the service of the defendant, and, with the men under his control, traveled over the road on a hand car as occasion required. Being in North Et. Worth, he was directed by the roadmaster to go to Hodge, a point some miles out, to aid in repairing a part of the road which had been washed out. In going out on his hand car he passed over the main track of the defendant in its yards in North Ft. "Worth, and by the switch at which later he was hurt. After he went north, other employes passed through this switch with an engine from the main track onto a siding leading to the packery, where they were to take charge of a train load of meat to be transported over the road to its destination. Expecting soon to return to the main track, they left the switch open, and this condition continued for several hours on account of their being unexpectedly detained. In the interval plaintiff, with his men returned south on the hand car, and ran into the open switch, and this caused the injuries to plaintiff on Which this action is based. The main track referred to was that in the yards, and not the main line over which the freight and passenger traffic was carried on, and it was the contention of the defendant that the leaving of the switch open at that place was entirely proper and in accordance with its rules and customs known to its employés. We shall assume, however, that under all the evidence this was a question for the jury to decide, and shall confine ourselves to the other contention that plaintiff, by his own negligence, was partly responsible for the occurrence in which he was hurt.

While, as stated, he was foreman of a gang whose employment was to put up fences and was called on this occasion to do other work, he had had some years previous experience in other branches of railroad service, was familiar with the running of hand cars over tracks and switches, and knew of the location of the switch in question. The car and the men were under .his control and protection, and the duty of keeping a lookout for obstacles to the safe running of the ear was his. I-Iis position was by a brake with which the car could be stopped, and which it was his duty to apply when occasion arose. On this occasion, he stood there, looking ahead for street crossings, for people who might be in danger, and for obstructions. At the switch was the usual target standing seven or eight feet above, and four or five feet to the right of, the track, plainly indicating the condition of the switch. It was visible for at least 100 yards to the north. The plaintiff says that he does not believe there was a target on this switch, but admits that he did not look for or think about one, and this, in our opinion, is wholly insufficient to raise an issue with other uncontradicted testimony to the fact of its presence. The condition of the rails themselves could have been seen for at least 40 feet, and the car, which was being moved slowly and carefully, could have been stopped by plaintiff in 30 feet at most. About 100 yards north of the switch was the crossing of another railroad where there was an interlocker at which the car had to be stopped, and over which it had to be lifted by the men. Neither from this point nor from any other did the plaintiff look to see the condition of the switch target or of the rails. These facts are stated from plaintiff’s own testimony. He says that his view along the right of way was obstructed by one of the men on the car standing in front of him, but admits that he could have seen the target, if there, and the condition of the rails at the distances mentioned, if his attention had not been diverted from them in the manner to be stated. Besides, considering his duty of keeping a lookout resulting from the nature of the position which he held, it could hardly be admitted as an excuse, if he permitted his view to be thus obstructed so as to prevent the proper discharge of that duty. He stated that the rules and practice were to keep the switches properly set and locked for the main line, unless a man were stationed at any which might be open to give warning, and that, seeing no man, he relied on this, and did not look at the target or rails, having passed that morning over a number of switches without harm. His chief explanation, however, is that his attention was distracted by a train which stood at the North Ft. Worth depot with its rear towards him. He first noticed it when at the interlocker, about 400 yards from it. The distance between the interlocker and the switch was, as we have seen, about 100 yards. Between the switch and the train were three bridges, 160, GO, and 30 yards- long, respectively, and plaintiff did not know but that the train might move back towards him to take a siding in order to let some other train pass, and that he might, unless careful, he caught on one of the bridges where he could not get his car out of the way. Hence he caused the car to be moved slowly and carefully, watching the train, and being unable at that distance to see whether it was in motion or not. But he admits that it would only have required a “flash of the eye” towards the switch to have seen its condition; indeed, it is perfectly evident that both rails and target were easily within the range of his vision as he looked at the train, and that his failure to see them was wholly the result of inattention due to the causes stated. The conclusion cannot be avoided in any reasonable way that such inattention was in itself a failure to perform the duty which, in the place of his employer, he had undertaken to perform, by keeping a proper lookout for the safety of the men and the property under his protection, and that such failure constituted negligence.

This is not the ordinary case of an employe hurt through the neglect of the employer to discharge some of his duties with reference to the safety of the employe while doing his work, and to the performance of which it is no duty of the latter to see. Such an employe may assume without investigation that the employer has properly performed his duties, and is not chargeable with contributory negligence for merely pursuing his work on that assumption until he has learned, or it is so patent and obvious that he ought to have seen that a danger to him, which in common prudence he ought not to incur, has arisen from a dereliction of duty on the part of the employer. Here the master, if controlling in person the operation of the hand ear as plaintiff was, would have been under the affirmative duty of keeping lookout for his employés relying on him for protection. That duty plaintiff assumed, and for any injury to the other employés resulting from his inattention to it the employer would be as fully responsible as if that inattention were his own. Can it be true that he is also responsible to the delinquent for an injury which but for his dereliction would have been prevented? We cannot admit such a proposition. It is trué that the duty to keep the lookout is not the absolute duty to see and avoid the danger at all events and under all circumstances. It merely exacts ordinary care commensurate with the dangers and risks attending such operations; the lookout exacted for such things as open switches being such only as is consistent with the discharge of all the duties arising out of the situation. But the duty is an affirmative one to discover as far as the exercise of the requisite care will allow the dangers for the avoidance of which it is assumed. It is like that incumbent on locomotive engineers; due allowance being made for the greater dangers and difficulties which surround them. The engineer has to operate and control .his engine, and this requires much of his care and attention, but at the same time he is required to keep as vigilant an outlook along the track as is consistent with the proper discharge of all his duties. His attention must at times be turned from objects in front of him, and his failure from such causes to see things which would otherwise be apparent to his observation is in no sense a failure of his duty. This is fully recognized in many authorities. H. & T. C. R. Co. v. Sympkins, 54 Tex. 615, 38 Am. Rep. 632; 5 Thompson on Neg. §§ 5461, 5473; Labatt, Master & Servant, §§ 350, 351; L. & N. Ry. Co. v. Hurt, 101 Ala. 34, 13 South. 130; Hall v. Chicago, etc., Ry. Co., 46 Minn. 439, 49 N. W. 239; N. & W. R. R. Co. v. Williams, 89 Va. 165, 15 S. E. 522; I. C. Ry. Co. v. Guess, 74 Miss. 170, 21 South. 50. But it will be seen that this is true, either- because of some emergency which demands swift action, or because of the performance of some part of the duty which is inconsistent with the exercise at the same time of the vigilance along the track. If the watch can be kept consistently with the doing of everything else that duty demands, the mere inattention which prevents it can be properly considered' nothing but negligence — negligence of a kind into which almost any one may occasionally lapse, for the most prudent persons are negligent at times— but negligence still, the consequences of which the person guilty of it has no right to visit on others.

We have assumed that a jury might find that the duties of other employés of the defendant required .them to keep switches like that in question closed, and the contentions of. counsel for plaintiff involve one that the plaintiff had the right to act on the assumption that this duty had been properly performed, and that this switch was closed. But what was the purpose for which the switch target and the lookout were required if it was not to enable those performing such duties as that which the plaintiff undertook to avoid the consequences of a neglect on the part of others? The same argument would apply to any other condition of the track, and would render nugatory those precautions and expedients by which disastrous consequences of the neglect of some are to be averted by the vigilance of others. Commonest experience has demonstrated that in matters involving so much it is often unsafe to rely on the perfect performance of duty on the part of one employé, and necessary to interpose successively the vigilance of several in order to insure the safety of the traveling public, or of other employés, and one who has undertaken such a duty, and, by an omission to perform it, brought injury upon himself, is not in a position to demand redress because others, too, have neglected their part in the scheme devised to avert danger. This contention is conclusively answered by the fact that the duty to keep a vigilant lookout required that plaintiff should not neglect to see as far as was practicable whether or not those whose business it was to keep the switch closed had done so. This he admits he could have seen, and did not see. There was no emergency and no inconsistent duty which prevented him from seeing. He had all the time he needed to see the switch and at the same time avoid the train. He was never for a moment after coming in seeing distance of the switch under any necessity which forbade or impeded his looking at it.

If one of the other men had been hurt and this were a case in which the trial court had directed the jury that, even if there was no negligence in leaving the switch open, still the defendant would be responsible for the admitted neglect of its foreman under whose protection it had put the other employes to look out for the switch target, could the propriety of the instruction be seriously questioned? We think not; and certainly it will not do to hold the defendant liable to its employe for the same negligent omission that, when imputed to it, makes it liable to others.

The judgment of the Court of Civil Appeals is correct.

Affirmed.  