Bonner, Associate Justice.
I. One of the grounds upon which the plaintiffs below, Mrs. Mary A. Fowler and her children, seek to recover in this case is, that the deceased husband and father, Jacob F. Fowler, came to his death in the attempt to execute an order issued to him by C. A. Burton, as assistant superintendent of the defendant company, to perform a dangerous duty, not [457]*457within the scope of the employment of Fowler as yardmaster.
Mr. Thompson, in his work on Negligence, thus states the rule in such cases:
“Where the master orders the servant into a service which he did not undertake to perform, and while in such service the servant is injured, his right to recover damages of the master may depend upon a variety of considerations. The master will not be liable for any injuries resulting to the servant from causes open to the observation of the servant and which it requires no special skill or training to foresee will be likely to occasion him harm, although he was at the time engaged in the performance of a service which he had not contracted to render. When a servant of mature years undertakes any labor outside the duties he has engaged to perform, the risks incident to which were equally open to the observation of himself and the master, the servant takes upon himself all such risks. Such a voluntary deviation from the original contract of service, entered into with full knowledge of the new risks assumed, ought, on principle, to be looked upon as a new contract of service,” etc. 2 Thompson on Negligence, 976, § 7.
Mr. Pierce, in his late work on Railroads, in treating of the subject of the detail of a servant for a dangerous duty outside of his employment, says that it would not be negligence to put a servant to a service of more than usual danger, when required for a good reason, as for the safety of passengers. Pierce on Railroads, 378-9.
But as a question of fact, the uncontradicted testimony shows that the service required of Fowler devolved upon him as an employee of the company, and that he was subject to the orders of Burton, the assistant superintendent.
Upon this issue, at least, it is the individual opinion of the writer, that there was such failure of testimony [458]*458on the part of the plaintiff that the court should have withdrawn it from the jury.
II. The other ground upon which the plaintiffs seek to recover is, that the defendant’s railway, where the accident occurred, was so defectively constructed that it was insufficient to resist the rain-storm which caused the injury; and that this defect was well known to Burton, the assistant superintendent who issued the order, and was not known to the deceased.
This involves two questions: first, the duty of the defendant in the construction of the culvert and road-bed; second, the ’ liability of the defendant for the injury to the deceased, if the defects, if any, were known to him.
First. It was the duty of the defendant to have so skillfully and substantially constructed the culvert and contiguous road-bed, in the first instance, and to have so maintained them afterwards, as to have avoided those dangers from rain-storms which could have been reasonably expected in that .section of the country, and which could have been guarded against by skillful and competent engineers, taking into „ consideration the flow of water which might reasonably be expected at the particular locality and from the adjacent water-shed. If, however, the culvert and road-bed were thus properly constructed and kept in repair, and the damage thereto was occasioned by such an extraordinary rain-storm as could not have been 'reasonably anticipated and guarded against, as above stated, then the company would not have been guilty of such culpable negligence as would, on this ground, have made them liable in damages for the death of Fowler. R. R. Co. v. Parker, 50 Tex., 344; R. R. Co. v. Halloran, 53 Tex. 46; 2 Thompson on Negligence 985 (5); Pierce on Railroads, 370; Shearman & Redfield on Neg., § 445.
Mary Fowler and the other plaintiffs, in addition to the allegations in their petition, admit in this court in their [459]*459brief that the testimony C£ clearly shows the prevalence and violence of the storm, the long continuance of the storm, and the unprecedented quantity of water that had fallen,” . . . and that the loss of Fowler’s life ££ was the result of a protracted, unprecedented rainfall- and storm; ” and they base their right to recover upon the ground that this and the consequent damage to the road was well known to Burton and was not known to Fowler. Had this admission been made in the court below, then the contest on this branch of the case should have been confined to the single question whether these facts were known to Burton when he issued the order, and unknown to Fowler when he attempted to execute the same.
The evidence upon the question of construction shows that the culvert was constructed of stone, that it was built in the year 1866 or 1867, in a good and substantial manner, and was sufficient to carry off all ordinary rainfalls, and that no complaint had ever been made of it before. That it was fully examined within a week prior to the accident and was found to be in perfect order, and that a train had passed over it in safety but a short timé previously. That the culvert itself was not injured, but that the damage was occasioned by reason of the water having cut in behind the wing-wall on the south side, and undermined the road-bed. That prior to the accident the road-bed at that place was in good condition and perfect order, and that no reasonable foresight could have anticipated and prevented the accident. The testimony further shows, in addition to the allegations in the petition, that on this part of the line of the road there was an extraordinary rain-storm — one of the witnesses describing it as a water-spout, the like of which he had never seen before.
The only evidence on the part of plaintiffs tending to prove that the defendants were guilty of negligence in the construction of their road, were the facts that the [460]*460accident happened by reason of the road-bed having been undermined by the water, and that the water was occasioned by an extraordinary storm. The mere fact that the accident happened was not of itself sufficient to entitle the plaintiffs to recover. Hutchinson on Carriers, § 799.
Whether the additional fact, that it happened by reason of an extraordinary rain-storm, was sufficient to make out such primé facie case as would cast the burden of proof upon the defendant to show that the culvert and road-bed were properly constructed, it is not necessary now to decide, but is left an open question, as in Railroad v. Dilahunty, 53 Tex., 212. We are all agreed, however, that if such prima facie case was made by the plaintiff, it was defeated by the testimony of the defendant.
Second. Were the plaintiffs entitled to recover on the last ground above stated, that the danger was known to Burton, the assistant superintendent, and not known to Fowler, the deceased?
The rule upon this subject is thus stated, in effect, by Mr.
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Bonner, Associate Justice.
I. One of the grounds upon which the plaintiffs below, Mrs. Mary A. Fowler and her children, seek to recover in this case is, that the deceased husband and father, Jacob F. Fowler, came to his death in the attempt to execute an order issued to him by C. A. Burton, as assistant superintendent of the defendant company, to perform a dangerous duty, not [457]*457within the scope of the employment of Fowler as yardmaster.
Mr. Thompson, in his work on Negligence, thus states the rule in such cases:
“Where the master orders the servant into a service which he did not undertake to perform, and while in such service the servant is injured, his right to recover damages of the master may depend upon a variety of considerations. The master will not be liable for any injuries resulting to the servant from causes open to the observation of the servant and which it requires no special skill or training to foresee will be likely to occasion him harm, although he was at the time engaged in the performance of a service which he had not contracted to render. When a servant of mature years undertakes any labor outside the duties he has engaged to perform, the risks incident to which were equally open to the observation of himself and the master, the servant takes upon himself all such risks. Such a voluntary deviation from the original contract of service, entered into with full knowledge of the new risks assumed, ought, on principle, to be looked upon as a new contract of service,” etc. 2 Thompson on Negligence, 976, § 7.
Mr. Pierce, in his late work on Railroads, in treating of the subject of the detail of a servant for a dangerous duty outside of his employment, says that it would not be negligence to put a servant to a service of more than usual danger, when required for a good reason, as for the safety of passengers. Pierce on Railroads, 378-9.
But as a question of fact, the uncontradicted testimony shows that the service required of Fowler devolved upon him as an employee of the company, and that he was subject to the orders of Burton, the assistant superintendent.
Upon this issue, at least, it is the individual opinion of the writer, that there was such failure of testimony [458]*458on the part of the plaintiff that the court should have withdrawn it from the jury.
II. The other ground upon which the plaintiffs seek to recover is, that the defendant’s railway, where the accident occurred, was so defectively constructed that it was insufficient to resist the rain-storm which caused the injury; and that this defect was well known to Burton, the assistant superintendent who issued the order, and was not known to the deceased.
This involves two questions: first, the duty of the defendant in the construction of the culvert and road-bed; second, the ’ liability of the defendant for the injury to the deceased, if the defects, if any, were known to him.
First. It was the duty of the defendant to have so skillfully and substantially constructed the culvert and contiguous road-bed, in the first instance, and to have so maintained them afterwards, as to have avoided those dangers from rain-storms which could have been reasonably expected in that .section of the country, and which could have been guarded against by skillful and competent engineers, taking into „ consideration the flow of water which might reasonably be expected at the particular locality and from the adjacent water-shed. If, however, the culvert and road-bed were thus properly constructed and kept in repair, and the damage thereto was occasioned by such an extraordinary rain-storm as could not have been 'reasonably anticipated and guarded against, as above stated, then the company would not have been guilty of such culpable negligence as would, on this ground, have made them liable in damages for the death of Fowler. R. R. Co. v. Parker, 50 Tex., 344; R. R. Co. v. Halloran, 53 Tex. 46; 2 Thompson on Negligence 985 (5); Pierce on Railroads, 370; Shearman & Redfield on Neg., § 445.
Mary Fowler and the other plaintiffs, in addition to the allegations in their petition, admit in this court in their [459]*459brief that the testimony C£ clearly shows the prevalence and violence of the storm, the long continuance of the storm, and the unprecedented quantity of water that had fallen,” . . . and that the loss of Fowler’s life ££ was the result of a protracted, unprecedented rainfall- and storm; ” and they base their right to recover upon the ground that this and the consequent damage to the road was well known to Burton and was not known to Fowler. Had this admission been made in the court below, then the contest on this branch of the case should have been confined to the single question whether these facts were known to Burton when he issued the order, and unknown to Fowler when he attempted to execute the same.
The evidence upon the question of construction shows that the culvert was constructed of stone, that it was built in the year 1866 or 1867, in a good and substantial manner, and was sufficient to carry off all ordinary rainfalls, and that no complaint had ever been made of it before. That it was fully examined within a week prior to the accident and was found to be in perfect order, and that a train had passed over it in safety but a short timé previously. That the culvert itself was not injured, but that the damage was occasioned by reason of the water having cut in behind the wing-wall on the south side, and undermined the road-bed. That prior to the accident the road-bed at that place was in good condition and perfect order, and that no reasonable foresight could have anticipated and prevented the accident. The testimony further shows, in addition to the allegations in the petition, that on this part of the line of the road there was an extraordinary rain-storm — one of the witnesses describing it as a water-spout, the like of which he had never seen before.
The only evidence on the part of plaintiffs tending to prove that the defendants were guilty of negligence in the construction of their road, were the facts that the [460]*460accident happened by reason of the road-bed having been undermined by the water, and that the water was occasioned by an extraordinary storm. The mere fact that the accident happened was not of itself sufficient to entitle the plaintiffs to recover. Hutchinson on Carriers, § 799.
Whether the additional fact, that it happened by reason of an extraordinary rain-storm, was sufficient to make out such primé facie case as would cast the burden of proof upon the defendant to show that the culvert and road-bed were properly constructed, it is not necessary now to decide, but is left an open question, as in Railroad v. Dilahunty, 53 Tex., 212. We are all agreed, however, that if such prima facie case was made by the plaintiff, it was defeated by the testimony of the defendant.
Second. Were the plaintiffs entitled to recover on the last ground above stated, that the danger was known to Burton, the assistant superintendent, and not known to Fowler, the deceased?
The rule upon this subject is thus stated, in effect, by Mr. Pierce: That a servant who, before the injury, had knowledge of the defect in the road, or who, having a reasonable opportunity to inform himself, ought to have known such defects, is presurned by remaining in the company’s service to have assumed the risk of such voluntary exposure of himself, and cannot recover for an injury resulting therefrom; and his knowledge has the same effect whether the company was informed or ignorant of such defect. He further says: This rule applies with special force when the defect or danger is obvious to the senses. Pierce on Railroads, 379, citing numerous authorities in notes; 2 Thompson on Negligence, 1008, § 15.
Construed in "the most favorable light for the plaintiffs, the testimony as disclosed by the record would show that both Burton and Fowler were mutually ignorant of the [461]*461damage done to the road-bed and of the impending danger. The dispatch upon which Fowler acted was issued from the city of Houston, considerably distant from the scene of the accident. The testimony shows that Burton was not fully advised of the character of the rain-storm or the extent of the damage; but on the contrary, it was shown that Fowler was in the midst of the storm and at the place of the accident, and hence had the opportunity to see and know the extent of the rain, and that the service was attended with more or less danger. It further shows that the accident occurred in the day-time, about three o’clock in the afternoon, and that Fowler was a man of mature years and possessed of long experience and peculiar skill as a railroad man.
[Opinion delivered March 14, 1882.]
The testimony does not sustain the proposition that the danger was known to Burton and unknown to Fowler.
We are all agreed that the testimony does not sustain the verdict and judgment upon any of the issues, and that the sixth assigned error was well taken, that the court erred in overruling the motion for a new trial; for which error the judgment is reversed and the cause remanded.
¡Reversed and remanded.