BROWN, Associate Justice.
This suit was instituted by Lillie Gormley—now Burnett—in her own right and as next friend of her infant son, D. J. Gormley, and by Thomas and Ann Gormley, to recover of the railroad company damages for the death of David Gormley, who was the husband of Lillie and the father of the minor D. J. Gormley, and was the son of Thomas and Ann Gormley. During the pendency of the suit, Lillie Gormley intermarried with Y. D. Burnett, who joins her in this action. The Court of Civil Appeals filed the following conclusions of fact:
“On the 27th day of August, 1892, the appellee, Lillie Burnett, was the wife of D. J. Gormley; the appellee David J. Gormley is his son, and Thomas and Ann Gormley are deceased’s parents. On the date above mentioned D. J. Gormley was in the employ of appellant company in the capacity of a brakeman on one of its freight trains, which was then being run over its road; that on the night of the day stated D. J. Gormley was sitting on top of one of the cars of said moving train in the performance of the duty of his employment, and that while so riding upon said car in his place of duty, he was, without any fault or negligence on his part proximately contributing to the accident, struck by a spout attached to one of appellant’s water tanks, which spout the appellant negligently allowed to be and remain out of repair and to overhang its railroad track and car upon which Gormley was sitting, and the force of the blow from said spout knocked him off the car and he was run over by the cars attached to said train, and thereby so injured that he died on the following day. That by reason of his death, which was proximately caused by said negligence of appellant, his wife Lillie was damaged in the sum of $2500, and his son David J. in the sum of $4000.”
Upon a trial before a jury, verdict was returned and judgment rendered for the plaintiff for $6500, which was apportioned as follows: $2500 to Lillie Burnett and $4000 to the son of D. J. Gormley; which judgment was affirmed by the Court of Civil Appeals.
In its application for this writ of error the railroad company sets up a number of grounds that we do not think it necessary to give special attention to, because they are either immaterial or not well taken.
We will consider such of the grounds presented in the petition for writ of error as we deem to be material and necessary to be examined with a view to another trial.
The judge of the trial court charged the jury as follows:
“4th. Negligence in a general sense is any omission to perform a duty imposed by law for the protection of one’s own person or property or the person or property of another.
“5th. Negligence to some extent should be measured by the character, risk and exposure of the business engaged in, and the degree of care of all parties is higher when the lives and limbs of themselves or others are endangered than in ordinary cases.
“7th. By ordinary care is meant that degree of care which may reasonably be expected of a person in the situation of the person alleged to have been injured, at the time the injury was inflicted.”
The fourth and fifth paragraphs of the court’s charge to the jury announce abstract principles of law which furnished no guide to the jury in deciding upon the issue of negligence. That portion of the fifth paragraph which informed the jury that “the degree of care of all parties is higher when the lives and limbs of themselves or others are endangered than in ordinary cases’ ’ is not correct as applied to this case. According to that statement the degree of care required of the defendant towards the deceased would be higher, if his life and limbs were endangered in the service, than, towards another employe who was not exposed to such danger. The law imposed upon the defendant the exercise of ordinary care to provide, for each and all employes, machinery, road-bed and appliances reasonably safe, and to exercise like care to maintain them in that condition. The degree of care does not vary with the increase or diminution of danger, it continues to be ordinary in degree, but the quantum of diligence to be used differs under different conditions. G., C.
&
S. F. Ry. v. Smith, 87 Texas, 348. For example, we will suppose that in the construction of defendant’s railroad it built a culvert over a small ravine, the foundation and timbers of which were comparatively light, and that it also constructed a bridge over a river, putting in piers with heavy foundations deeply laid in the earth, and using iron for the superstructure instead of wood. In each instance the degree of care required, as to employes, was ordinary, but the amount of care to be exercised in the construction of the bridge was' much greater than in building the small culvert, because there would be greater danger in its use, and a man of ordinary prudence would use more diligence to provide against injury.
The seventh paragraph gives the only definition of ordinary care that is to be found in the charge of the court. If intended to apply to the defendant, it was erroneous in making the conduct to be expected of the deceased the standard, leaving each juror to determine what might be
reasonably expected of the injured party. The care which the defendant was bound to exercise towards deceased could not be determined by what the latter would be expected to do. The degrees of care to be used by both might be the same, but not necessarily so. If the deceased had been a passenger the care exacted of him would have been ordinary, while the law would have imposed upon defendant the highest degree. The degree of care is fixed by the relations of the parties as master and servant or carrier and passenger, but the quantum of vigilance to be exercised must be determined by the circumstances; more care must be used whenever there is greater danger.
The tenth paragraph in the court’s charge is in part as follows: “It is a duty imposed by law upon the railway companies to do everything that can be reasonably done for the safety of their employes, and to have the structures erected along and by their lines of road for use in connection with the running and operating of their trains along such lines of road to be reasonably safe; and a failure to do so will render a corporation liable for any damage resulting to such employes.” This charge imposed upon the railroad company a degree of diligence which is not required of it except as a carrier of passengers. To “do everything that can be reasonably done” is all that could be expected of very prudent persons and constitutes the highest degree of care that the law imposes upon railroad companies. The law does not require the railroad company as a duty to employes “to have the structures to be reasonably safe,” but requires that it should exercise ordinary care to keep them in that condition. It may be that the judge who drew this charge intended that it should read “and do every thing that can reasonably be done to have the structures,” etc. If, however, we read it in that way, it is still subject to the objection that it imposes a greater burden upon the railroad company than is required by law.
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BROWN, Associate Justice.
This suit was instituted by Lillie Gormley—now Burnett—in her own right and as next friend of her infant son, D. J. Gormley, and by Thomas and Ann Gormley, to recover of the railroad company damages for the death of David Gormley, who was the husband of Lillie and the father of the minor D. J. Gormley, and was the son of Thomas and Ann Gormley. During the pendency of the suit, Lillie Gormley intermarried with Y. D. Burnett, who joins her in this action. The Court of Civil Appeals filed the following conclusions of fact:
“On the 27th day of August, 1892, the appellee, Lillie Burnett, was the wife of D. J. Gormley; the appellee David J. Gormley is his son, and Thomas and Ann Gormley are deceased’s parents. On the date above mentioned D. J. Gormley was in the employ of appellant company in the capacity of a brakeman on one of its freight trains, which was then being run over its road; that on the night of the day stated D. J. Gormley was sitting on top of one of the cars of said moving train in the performance of the duty of his employment, and that while so riding upon said car in his place of duty, he was, without any fault or negligence on his part proximately contributing to the accident, struck by a spout attached to one of appellant’s water tanks, which spout the appellant negligently allowed to be and remain out of repair and to overhang its railroad track and car upon which Gormley was sitting, and the force of the blow from said spout knocked him off the car and he was run over by the cars attached to said train, and thereby so injured that he died on the following day. That by reason of his death, which was proximately caused by said negligence of appellant, his wife Lillie was damaged in the sum of $2500, and his son David J. in the sum of $4000.”
Upon a trial before a jury, verdict was returned and judgment rendered for the plaintiff for $6500, which was apportioned as follows: $2500 to Lillie Burnett and $4000 to the son of D. J. Gormley; which judgment was affirmed by the Court of Civil Appeals.
In its application for this writ of error the railroad company sets up a number of grounds that we do not think it necessary to give special attention to, because they are either immaterial or not well taken.
We will consider such of the grounds presented in the petition for writ of error as we deem to be material and necessary to be examined with a view to another trial.
The judge of the trial court charged the jury as follows:
“4th. Negligence in a general sense is any omission to perform a duty imposed by law for the protection of one’s own person or property or the person or property of another.
“5th. Negligence to some extent should be measured by the character, risk and exposure of the business engaged in, and the degree of care of all parties is higher when the lives and limbs of themselves or others are endangered than in ordinary cases.
“7th. By ordinary care is meant that degree of care which may reasonably be expected of a person in the situation of the person alleged to have been injured, at the time the injury was inflicted.”
The fourth and fifth paragraphs of the court’s charge to the jury announce abstract principles of law which furnished no guide to the jury in deciding upon the issue of negligence. That portion of the fifth paragraph which informed the jury that “the degree of care of all parties is higher when the lives and limbs of themselves or others are endangered than in ordinary cases’ ’ is not correct as applied to this case. According to that statement the degree of care required of the defendant towards the deceased would be higher, if his life and limbs were endangered in the service, than, towards another employe who was not exposed to such danger. The law imposed upon the defendant the exercise of ordinary care to provide, for each and all employes, machinery, road-bed and appliances reasonably safe, and to exercise like care to maintain them in that condition. The degree of care does not vary with the increase or diminution of danger, it continues to be ordinary in degree, but the quantum of diligence to be used differs under different conditions. G., C.
&
S. F. Ry. v. Smith, 87 Texas, 348. For example, we will suppose that in the construction of defendant’s railroad it built a culvert over a small ravine, the foundation and timbers of which were comparatively light, and that it also constructed a bridge over a river, putting in piers with heavy foundations deeply laid in the earth, and using iron for the superstructure instead of wood. In each instance the degree of care required, as to employes, was ordinary, but the amount of care to be exercised in the construction of the bridge was' much greater than in building the small culvert, because there would be greater danger in its use, and a man of ordinary prudence would use more diligence to provide against injury.
The seventh paragraph gives the only definition of ordinary care that is to be found in the charge of the court. If intended to apply to the defendant, it was erroneous in making the conduct to be expected of the deceased the standard, leaving each juror to determine what might be
reasonably expected of the injured party. The care which the defendant was bound to exercise towards deceased could not be determined by what the latter would be expected to do. The degrees of care to be used by both might be the same, but not necessarily so. If the deceased had been a passenger the care exacted of him would have been ordinary, while the law would have imposed upon defendant the highest degree. The degree of care is fixed by the relations of the parties as master and servant or carrier and passenger, but the quantum of vigilance to be exercised must be determined by the circumstances; more care must be used whenever there is greater danger.
The tenth paragraph in the court’s charge is in part as follows: “It is a duty imposed by law upon the railway companies to do everything that can be reasonably done for the safety of their employes, and to have the structures erected along and by their lines of road for use in connection with the running and operating of their trains along such lines of road to be reasonably safe; and a failure to do so will render a corporation liable for any damage resulting to such employes.” This charge imposed upon the railroad company a degree of diligence which is not required of it except as a carrier of passengers. To “do everything that can be reasonably done” is all that could be expected of very prudent persons and constitutes the highest degree of care that the law imposes upon railroad companies. The law does not require the railroad company as a duty to employes “to have the structures to be reasonably safe,” but requires that it should exercise ordinary care to keep them in that condition. It may be that the judge who drew this charge intended that it should read “and do every thing that can reasonably be done to have the structures,” etc. If, however, we read it in that way, it is still subject to the objection that it imposes a greater burden upon the railroad company than is required by law. The railroad company was required by law to use such care as a person of ordinary prudence would have used, under like circumstances, to furnish structures and appliances which were reasonably safe, and to use such care to maintain them in that condition.
In the thirteenth paragraph of the charge given by the court to the jury, it is in substance stated that it is lawful for a railroad company to make reasonable rules and regulations for the government of its employes in the discharge of their duties, and that an employe who willfully or negligently disobeys such rules or regulations, and is thereby injured, cannot hold the .railroad company liable for such injury; and the charge continues in the following language: “But in order to find for the defendant company on this issue, you must find from a preponderance of the evidence that the defendant company was exacting the observance of such rules by its employes, and that said Gorrnley knew of the existence of said rules and of their enforced observance by the defendant at the time he was injured, and that, at the time of his injury, he was violating said rules, and that the act done by him in violation of said rule was the proximate and not the mediate cause of his,
death.” We think there was error in the latter part of the charge above quoted, but that it was immaterial and would not require a reversal of the judgment in this case, because it does not appear from the evidence that the injury which was received by Gormley resulted from a violation of the rule introduced in evidence. But we have thought proper to comment upon this charge and point out its error in view of another trial.
When the proof shows that the railroad company has made and promulgated rules and regulations for the government of its employes, it is not necessary that the evidence should show that the employe claiming to have been injured had knowledge of the existence of such rule, but in the absence of proof to the contrary he will be presumed to know of the rules and regulations established by the company. Pilkinton v. Railway, 70 Texas, 230; M. P. Railway Company v. Watts, 63 Texas, 552; Railway Company v. Callbreath, 66 Texas, 528. This charge not only required of the defendant to prove that the deceased knew of the rule, but also to prove that the defendant was insisting upon and enforcing the observance of the rule by its employes. If the plaintiffs relied upon the abrogation of the rule by its non-enforcement, it devolved upon them to establish that fact.
The first special charge asked by the defendant, which was given by the court, contains every material proposition applicable to this case that is embraced in the seventh special charge requested by the defendant, which was refused by the court, and which is here complained of as error. There was no error in the court refusing to give in charge that which had already been submitted to the jury.
The trial court did not err in overruling the objection to the testimony of Robinson, as shown in bill of exception No 4, because a part of it was admissible and the objection was to the whole. The court was not required to separate the admissible from what was inadmissible; the objector should do that. If the evidence did not show that the agent to whom notice was given had such connection with the tank as to make it his duty to give notice of its condition or to repair it, that part of the evidence should have been excluded on proper objection or motion.
The District Court erred in the 5th, 7th and 10th paragraphs of the charge given to the jury, for which errors the judgments of said District Court and of the Court of Civil Appeals are reversed and this cause is remanded.
Reversed and remanded.