CONNER, Chief Justice.
For the purposes of this opinion the following statement taken from the brief of appellant is deemed sufficient:
“While appellee was on the side of an engine tank for the purpose of placing an oil can, he was caught between the side of the moving tank and a coal bin parallel with the track. He based his right to recover on the ground that the coal bin had been permitted to bulge out from its proper position, and that the engineer was guilty of negligence in starting the engine without warning and fast speed. The defense was general denial; that the plaintiff had long since known or ought to have known of the condition of the coal bin, and assumed the risk thereof, and eon-
tributary negligence in assuming an unnecessarily dangerous position. The defendant pleaded the defense of assumption of risk and of contributory negligence in separate and distinct paragraphs of its answer. There was a verdict and judgment for the appellee for $10,000. Appellant’s motion for a new trial on the same grounds as are now assigned as error, was overruled. This appeal has been prosecuted in due course.”
There was evidence tending to show that the “bulge” in the coal bin projected to within 4j4 to 6% inches from the side of a passing tender dr engine tank, on the side of which, while passing, it would be obviously dangerous for a person to remain, that is, there is evidence from which the jury might have so found; that it had been permitted to remain in this condition five or six months, during which time appellee had passed it very frequently; that the engineer on the engine in question and other employes of appellant in and about the yards Imew of this condition, although appellee testified that he did not. It was appellee’s duty as fireman, among other things, to take from and replace in a box attached to the side of the tender certain oil cans containing supplies of oil with which to oil the engine. Going to and from the cab of the engine to this box it was necessary to take one or more steps beyond the cab upon a projection or projections along the side of the tender, and, while doing so, secure the position with one hand holding to its top. This duty was generally performed, however, at times when the engine was standing still. Appellee testified that on the occasion of the injury, while the engine was standing still, he stepped out in the manner detailed as necessary to replace an oil can, when the engineer suddenly and without warning started the engine along the track passing the coal bin, and with great speed ran the intervening distance, some
50
feet, by reason of which appellee was crushed between said <cbulge” and tank and seriously injured. The testimony of the engineer and a switchman or brakeman in the cab at the time, however, tended to show that the speed of the engine was moderate, and that appellee was inside of the cab at the time the same was started, and must have gone along the side of the tender as testified by him between the time of the starting and the time of the injury.
The charge of the court is criticised in the assignments of error, in that it is insisted that the court misdirected the jury on the issue of assumed risk plead by appellant as one of its defenses. We think this criticism can be best illustrated by the following quotation from the tenth and eighth paragraphs of the court’s charge:
“10b. If you believe the defendant was guilty of negligence in allowing the bulge in the coal bin testified about, to remain as it was for the length of time it had, and that the plaintiff Imew or had theretofore known of the bulge, then, while such knowledge on the part of the plaintiff would not prevent the plaintiff from recovering for an injury, if any, caused thereby, if the plaintiff was at the time in the exercise of reasonable care for his own safety, yet the fact, if it was a fact, that the
plaintiff knew or had known of the bulge in the coal bin, may be considered by the jury, together with the other evidence, and given such weight as you believe it entitled to, if any, in determining whether the plaintiff was guilty of negligence in remaining in the defendant’s service, or in doing the acts he did at the time he did, or in conducting himself as he did at the time he was injured.”
“8. The plaintiff in accepting employment from the defendant as a locomotive fireman assumed the ordinary risks incident to the nature and character of the business in which he was engaged, that is, the ordinary risks incident to the position as fireman upon an engine of a railway train, and for injury due to or the result of such ordinary risks there can be no recovery. But in assuming such ordinary risks plaintiff did not assume the risk of danger from negligence of the defendant, and did not preclude himself from the right to recover for any injuries, if any, not the "result of such ordinary risks, but due to and resulting from negligence, if any, on the part of the defendant railway company, but for such, if any, he could recover; unless the plaintiff was also guilty of negligence which caused or contributed to cause the injury.”
It is first insisted that if appellee knew of the bulge in the coal bin and ■of the danger, or might havé known the same by the exercise of ordinary care, and without promise on the part of the employer to remedy the ■same continued in his employment, as a matter of law he assumed the risk incident to the defective condition named, and can not recover for any injury resulting therefrom. While the rule has been so stated frequently in the authorities, we are not willing to apply it under the peculiar facts of this case. There was evidence tending to show that it was not customary, nor was it appellee’s duty, to go along the side of the engine tank in procuring and replacing oil cans as mentioned while the ■engine was in motion. While in motion, appellee’s place of duty was ordinarily within the engine cab, in which situation no danger was to be apprehended by passing along side the defective coal bin; and under such circumstances he should not be held to have necessarily assumed a risk not arising within the scope of his duty. Wood, Hast, and Servt.,
2
•ed., see. 327.
The next proposition submitted under the assignment made to the court’s charge is that: “Where the defective condition complained of was open and obvious and patent to ordinary observation, the employe was chargeable with notice thereof, and assumed the risk.” This proposition is established by abundant authority. We think it apparent from the charges of the court quoted that the doctrine of assumed risk and that of contributory negligence was confused, or rather, perhaps, that the right of the master to exemption from the results of his negligence was made to depend solely upon the general law of contributory negligence. If correct in this conclusion, it follows that there was an affirmative misdirection of the jury as to the law of the case. The jury were instructed, in effect, that if appellee knew of the “bulge” (and if he did, the evidence tended to show that he must have known of its dangerous prox
dmity to1 the track), then such knowledge would not prevent' the appellee from recovering, if he was at the time in the exercise of reasonable care for his own safety, but that such knowledge might be considered with other evidence in determining whether appellee wak guilty of contributory negligence as alleged.
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CONNER, Chief Justice.
For the purposes of this opinion the following statement taken from the brief of appellant is deemed sufficient:
“While appellee was on the side of an engine tank for the purpose of placing an oil can, he was caught between the side of the moving tank and a coal bin parallel with the track. He based his right to recover on the ground that the coal bin had been permitted to bulge out from its proper position, and that the engineer was guilty of negligence in starting the engine without warning and fast speed. The defense was general denial; that the plaintiff had long since known or ought to have known of the condition of the coal bin, and assumed the risk thereof, and eon-
tributary negligence in assuming an unnecessarily dangerous position. The defendant pleaded the defense of assumption of risk and of contributory negligence in separate and distinct paragraphs of its answer. There was a verdict and judgment for the appellee for $10,000. Appellant’s motion for a new trial on the same grounds as are now assigned as error, was overruled. This appeal has been prosecuted in due course.”
There was evidence tending to show that the “bulge” in the coal bin projected to within 4j4 to 6% inches from the side of a passing tender dr engine tank, on the side of which, while passing, it would be obviously dangerous for a person to remain, that is, there is evidence from which the jury might have so found; that it had been permitted to remain in this condition five or six months, during which time appellee had passed it very frequently; that the engineer on the engine in question and other employes of appellant in and about the yards Imew of this condition, although appellee testified that he did not. It was appellee’s duty as fireman, among other things, to take from and replace in a box attached to the side of the tender certain oil cans containing supplies of oil with which to oil the engine. Going to and from the cab of the engine to this box it was necessary to take one or more steps beyond the cab upon a projection or projections along the side of the tender, and, while doing so, secure the position with one hand holding to its top. This duty was generally performed, however, at times when the engine was standing still. Appellee testified that on the occasion of the injury, while the engine was standing still, he stepped out in the manner detailed as necessary to replace an oil can, when the engineer suddenly and without warning started the engine along the track passing the coal bin, and with great speed ran the intervening distance, some
50
feet, by reason of which appellee was crushed between said <cbulge” and tank and seriously injured. The testimony of the engineer and a switchman or brakeman in the cab at the time, however, tended to show that the speed of the engine was moderate, and that appellee was inside of the cab at the time the same was started, and must have gone along the side of the tender as testified by him between the time of the starting and the time of the injury.
The charge of the court is criticised in the assignments of error, in that it is insisted that the court misdirected the jury on the issue of assumed risk plead by appellant as one of its defenses. We think this criticism can be best illustrated by the following quotation from the tenth and eighth paragraphs of the court’s charge:
“10b. If you believe the defendant was guilty of negligence in allowing the bulge in the coal bin testified about, to remain as it was for the length of time it had, and that the plaintiff Imew or had theretofore known of the bulge, then, while such knowledge on the part of the plaintiff would not prevent the plaintiff from recovering for an injury, if any, caused thereby, if the plaintiff was at the time in the exercise of reasonable care for his own safety, yet the fact, if it was a fact, that the
plaintiff knew or had known of the bulge in the coal bin, may be considered by the jury, together with the other evidence, and given such weight as you believe it entitled to, if any, in determining whether the plaintiff was guilty of negligence in remaining in the defendant’s service, or in doing the acts he did at the time he did, or in conducting himself as he did at the time he was injured.”
“8. The plaintiff in accepting employment from the defendant as a locomotive fireman assumed the ordinary risks incident to the nature and character of the business in which he was engaged, that is, the ordinary risks incident to the position as fireman upon an engine of a railway train, and for injury due to or the result of such ordinary risks there can be no recovery. But in assuming such ordinary risks plaintiff did not assume the risk of danger from negligence of the defendant, and did not preclude himself from the right to recover for any injuries, if any, not the "result of such ordinary risks, but due to and resulting from negligence, if any, on the part of the defendant railway company, but for such, if any, he could recover; unless the plaintiff was also guilty of negligence which caused or contributed to cause the injury.”
It is first insisted that if appellee knew of the bulge in the coal bin and ■of the danger, or might havé known the same by the exercise of ordinary care, and without promise on the part of the employer to remedy the ■same continued in his employment, as a matter of law he assumed the risk incident to the defective condition named, and can not recover for any injury resulting therefrom. While the rule has been so stated frequently in the authorities, we are not willing to apply it under the peculiar facts of this case. There was evidence tending to show that it was not customary, nor was it appellee’s duty, to go along the side of the engine tank in procuring and replacing oil cans as mentioned while the ■engine was in motion. While in motion, appellee’s place of duty was ordinarily within the engine cab, in which situation no danger was to be apprehended by passing along side the defective coal bin; and under such circumstances he should not be held to have necessarily assumed a risk not arising within the scope of his duty. Wood, Hast, and Servt.,
2
•ed., see. 327.
The next proposition submitted under the assignment made to the court’s charge is that: “Where the defective condition complained of was open and obvious and patent to ordinary observation, the employe was chargeable with notice thereof, and assumed the risk.” This proposition is established by abundant authority. We think it apparent from the charges of the court quoted that the doctrine of assumed risk and that of contributory negligence was confused, or rather, perhaps, that the right of the master to exemption from the results of his negligence was made to depend solely upon the general law of contributory negligence. If correct in this conclusion, it follows that there was an affirmative misdirection of the jury as to the law of the case. The jury were instructed, in effect, that if appellee knew of the “bulge” (and if he did, the evidence tended to show that he must have known of its dangerous prox
dmity to1 the track), then such knowledge would not prevent' the appellee from recovering, if he was at the time in the exercise of reasonable care for his own safety, but that such knowledge might be considered with other evidence in determining whether appellee wak guilty of contributory negligence as alleged. This view is supported by some of the authorities. Sherman & Redfield, in their work on the Law of Negligence, fourth edition, sections 208, et seq., insist that the rule is “that the exemption of masters from liability to servants, for injuries caused by defects which the servants knew or ought to have known, is founded solely upon the general law of contributory negligence, and therefore that the liability or exemption of a master in such cases must be determined by reference to that law,” giving an able review of many authorities. We think, however, by the decisions of this State binding upon us a distinction must be made between the doctrines of assumed risk and contributory negligence. With exception not necessary to be noticed, there are two kinds of risks that an employe is held to assume: (1) those ordinarily arising out of the character of his employment and not induced by negligence on the part of his employer; (2) those risks and dangers that are obvious or known to the employe. In this latter case, however careful and prudent he may be in the performance of his duties, he assumes the risk of any injury resulting from the obvious defect, even though the negligence of the employer may have been the efficient cause of the defect, situation or danger. In these instances the law has given no right of action against the master at all. In cases of contributory negligence, however, the general right of recovery for injuries caused by the negligence of the employer is recognized, and may in fact be said to be comprehended within its very terms, but the contributory negligence of the injured employe is affirmative matter of defense that maj' be interposed by the master to defeat the operation of the general rule, and to relieve him from the ordinary consequences of his negligence. See Railway v. Bradford, 66 Texas, 732, quoted by the Supreme Court with approval in the case of Crawford v. Railway, 89 Texas, 89; Railway v. Conroy, 83 Texas, 214; Railway v. Somers, 78 Texas, 439; Railway v. Single, 9 Texas Civ. App., 322; Railway v. Schwabbe, 1 Texas Civ. App., 573; Green v. Cross and Eddy, 79 Texas, 132; Railway v. Somers, 71 Texas, 700; Railway v. Bryant (by this court), 8 Texas Civ. App., 134; Ely v. Railway, 15 Texas Civ. App., 511 (in which writ of error was refused) ; Railway v. Hohl, 29 S. W. Rep., 1131.
If, therefore, the jury should find, as there was evidence tending to show, that after the engineer started his engine in the direction of the coal bin in question, appellee undertook to replace the oil can in question with knowledge of the bulge in the coal bin and of its dangerous proximity to the track, he assumed the risk of the injuries resulting therefrom, notwithstanding evidence that tended to show that a reasonably careful and prudent man might have supposed that he could arrange the oil cans and return to the cab in time to avoid the danger. If this evidence be true, .appellee must have known that the engine was in mo
tion,—lie is affected with notice of the ordinary operation of the laws of' nature, and must have known that it was dangerous to ride on the side off the tank-by said bulge in the bin, and if he undertook to perform the-duty of replacing the oil can under such circumstances, he must be held, to have voluntarily taken the chances.
In view of another trial, we add that the court properly refused! special charge No. 1 requested by appellant. If appellee undertook to replace the oil can while the engine was standing still, and the engineer, without warning and without appellee’s knowledge, suddenly and swiftly approached the point of danger, as appellee testifies, and appellee was without contributory negligence, then he would be entitled to recover, notwithstanding he may have known of the defect in the bin and may have remained in the employment of the master.
Other assignments need not be noticed, but for the error discussed the judgment below is reversed and the cause remanded.
Reversed and remanded.
ON MOTION FOE BEHEABING.