
    GULF, C. & S. F. RY. CO. v. HALL.
    (No. 8599.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    April 14, 1917.
    Rehearing Denied May 19, 1917.)
    1. Master and Servant <&wkey;279(4) — Action for Injuries — Federal Employers’ Liability Act — Sufficiency of Evidence— Proximate Cause.
    In a railroad car carpenter apprentice’s action for injuries, in which both parties invokéd the provisions of the federal Employers’ Liability Act (Act April 22, 1908, c. 149, 35 Stat. 65 [U. S. Comp. St. 1916, §§ 8657-8665]), evidence held to support a finding that the negligence of a fellow servant was the proximate cause of plaintiff’s injury.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. § 978.]
    2. Master and Servant <&wkey;289(l, 39) — Action for Injuries — Sufficiency of Evidence — Federal Employers’ Liability Act —Contributory Negligence.
    Evidence held not to conclusively establish that plaintiff was guilty of contributory negligence, or that such negligence was the sole cause of his injuries.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 1089, 1131.]
    3. Master and Servant &wkey;>204(3) — Injuries to Servant — Federal Employers’ Liability Act — Assumption of Risk.
    Plaintiff cannot be held to have assumed the risk if . his injury proximately resulted from the negligence of a fellow servant, in the absence of prior knowledge by plaintiff of such negligence.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. § 546.]
    4. Trial &wkey;>250(10) — Instructions — Omission-Necessity of Request.
    Where the jury were instructed that if they did not find that plaintiff was injured as the proximate result of the alleged negligence of a fellow servant, verdict should be for defendant, but were not instructed specifically on the defense of assumed risk, defendant is not in a position to complain of such omission in the absence of a request for a special instruction covering the issue.
    [Ed. Note. — For -other cases, see Trial, Cent. Dig. § 637.]
    5. Master and Servant <&wkey;287(4) — Injuries to Servant — Federal Employers’ Liability Act — Sufficiency of Evidence.
    Evidence held not to show conclusively as a matter of law that the fellow servant in the .exercise of 'ordinary care reasonably could not have foreseen that an injury of the character suffered by plaintiff might probably result in consequence of his act in boring a hole in floor of car upon which plaintiff was sitting in question without first giving plaintiff warning of his intention so to do.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 1045, 1060.]
    Appeal from District Court, Johnson County; O. L. Lockett, Judge.
    Suit by W. W. Hall .against the Gulf, Colorado & Santa Fé Railway Company. Judgment for plaintiff, and defendant appeals.
    Affirmed.
    Lee, Lomax & Smith, of Ft. Worth, and Brown & Lockett, of Cleburne, for appellant. Warren & ICugle and W. E., Myers, all of Cle-burne, for appellee.
   DUNKLIN, J.

The Gulf, Colorado & Santa FS Railway Company has appealed from a judgment rendered against it in favor of W. W. 1-Iall, for damages for personal injuries sustained by him while engaged in the service of the company as a car repairer and alleged to have resulted from the negligence of L. Spivey, another employé of defendant.

Plaintiff, a young man who had been employed by the company as a car carpenter apprentice, was directed by the defendant’s foreman to assist Spivey and other employes in doing some repair work on a box car. Two broken sills under tbe car were to be spliced by other timbers. Tbe splices were placed by the sides of tbe sills and fastened to tbe floor of tbe car by bolts inserted through boles bored through tbe splices and floor,.the bolts being inserted from below and tbe other end secured by a bolt bead or tap screwed thereon. When tbe boles were bored it was tbe plaintiff’s duty to go inside tbe car and “gain” or ream out tbe boles for tbe bolt beads. This work consisted in cutting out tbe wood around tbe surface of the bole for such a width and depth that the bolt bead when screwed on tbe end of tbe bolt, would be on a level with tbe floor of tbe ear; and tbe tools used by plaintiff were a chisel.and hammer. Tbe drill used to bore tbe boles was driven by an air motor which "ran at high speed and could be started or stopped by means of a set screw in tbe bands of tbe operator of tbe drill. Tbe splices used were about 8 inches thick. Plaintiff was under tbe car when tbe boles were bored in-the first sill. He then went into tbe car and began to “gain” out those boles for tbe bolt beads leaving Spivey, who bad been assisting in manipulating tbe drill, under tbe car. In doing this work be sat down on the floor of tbe car directly over, tbe other sill which was to be spliced, and while in that position the drill which was put to work on that sill by Spivey penetrated tbe floor where plaintiff sat and injured him seriously. Tbe distance between tbe centers of tbe two sills was about 18 inches. In bis petition be charged that Spivey was guilty of negligence in failing to give him prior notice of his intention to drill tbe particular bole, the drilling of which resulted in bis injury, and that such negligence was tbe proximate cause of the injury.

In addition to tbe general issue tbe defendant urged tbe defenses of assumed risk and contributory negligence on tbe part of plaintiff. Both parties pleaded that at tbe time of bis injury 'plaintiff was engaged in a service pertaining to interstate commerce, and invoked tbe provisions of tbe federal Employers’ Liability Statute as controlling. According to bis testimony plaintiff bad been employed by defendant company in different kinds of work for two years and eight months. At tbe time of tbe accident be bad served as a car carpenter apprentice three months. He was serving in that capacity when be was injured, but prior to bis injury be bad assisted in repairing only three sills. He testified that after he and Spivey bad finished boring tbe boles for tbe first sill and while other workmen were shaping the splices for tbe other sill be told Spivey be would go into the car. and “gain” out tbe boles already bored for tbe first sill; that he sat down on tbe floor because that was the best position to do tbe work; that be bad finishe'd two boles and was working on the third when tbe accident happened. He further testified that tbe air motor was not in operation at tbe time be went into tbe car to ream out tbe holes, and that tbe first intimation be bad that other boles were, being bored was when the bit caught bis overalls worn by him when be was injured. Several witnesses testified without contradiction that tbe usual and customary position assumed by those engaged in “gaining” tbe holes was to kneel on tbe floor or to stoop down; that it was not customary for those operating tbe drill to notify one engaged in reaming out tbe boles of their intention to start tbe drill; and that plaintiff could have done the work without placing any part of bis body over tbe sill that was being bored when be was injured.

We are of opinion, however, that plaintiff’s testimony considered in connection with other circumstances related above supports the finding by tbe jury of tbe alleged negligence of Spivey, and that such negligence was tbe proximate cause of tbe injury.

Tbe verdict of tbe jury was in response to a general charge, and not in answer to special issues. In tbe charge submitted the issue of plaintiff’s negligence was presented, and the jury was told in effect that such negligence on bis part would diminish bis damages, if any be was allowed, in proportion to tbe amount of negligence attributed to him. Tbe jury returned a general verdict in plaintiff’s favor for $750. In view of tbe evidence as to tbe character of bis injuries it is impossible to determine whether or not tbe jury found in favor of tbe defense of contributory negligence, and by reason of that finding reduced tbe amount of damages which otherwise would have been awarded. But aside from that observation, we are unable to say, as insisted by appellant, that the evidence conclusively established contributory negligence on tbe part of plaintiff, and that such negligence was tbe sole cause of bis injury.

Citation of authorities is unnecessary to support our further conclusion that plaintiff cannot be held to have assumed tbe risk of bis injury if tbe same resulted from the negligence upon which tbe verdict and judgment were predicated, in tbe absence of prior knowledge by plaintiff of such negligence.

Tbe jury were instructed that if they did not find that plaintiff was injured as tbe proximate result of tbe alleged negligence of Spivey, a verdict should be returned in defendant’s favor, but did not charge specifically on tbe defense of assumed risk. For this omission defendant excepted to tbe charge, but did not present a special instruction covering that issue. In tbe absence of such a request it is in no position to complain of such omission. American Cotton Co. v. Smith, 69 S. W. 443. Furthermore, the complaint of such omission is predicated upon tbe theory that Spivey was not guilty of tbe negligence submitted in tbe charge as a basis for recovery, and that tbe injury was due to one oí the risks ordinarily incident to plaintiff’s employment and which was known to him.

In the light of all the facts and circumstances including plaintiff’s limited experience in such work we are of opinion, further, that the evidence did not show conclusively as a matter of law that Spivey in the exercise of ordinary care reasonably could not have foreseen that an injury of the character suffered by plaintiff might probably result in consequence of his act in boring the hole in question without first giving plaintiff warning of his intention so to do.

For the reasons indicated, all assignments of error are overruled, and the judgment is affirmed. 
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