Opinion op the court bt
JUDGE HOBSON
Affirming.
Appellee, W. E. Davis, on December 22,1900, was a track walker in tbe service of appellant on its section near Rocky Hill station. As be was going along tbe track in tbe discharge of bis duty, be saw a train coming, and got to one side, as usual When the train was something like 200 yards, from him, be beard a rattling, and saw rocks throwing out. He then aimed to get further away, and as be turned around tbe rocks hit him in tbe iside, on the leg, and up in the back before he had time to get away. The train was going south, running something like fifty miles an hour. The rocks were thrown out by a rod or something of that sort under tbe bottom of the train, which1 was dragging against .the ballast and ties. Appellee had been south to the end of his section, and was returning. As he went down, there were no dents upon the ties' or ballast, but from the point where he was struck, for something over a mile back, there were dents in the ties and in the ballast, evidently made by the object which threw the rocks out. These dents continued for a mile or more beyond the point where he was hurt, and at the point where they stopped an iron rod was found, six feet long or more, and nearly an inch in diameter. In some places it struck the cross-ties and at others it struck the ballast. It is shown by the proof that when anything gets down under a train it will throw out the ballast in this way. Appellee had seen it happen before, but not so bad as this. It is also shown by the proof that, although these dents upon tbe track continued for something over two miles, no one [274]*274on the train, so far as the proof shows, knew anything of the trouble, or took any 'Steps to right it. The proof for the defendant shows that the cars of the train were inspected at Bowling Green, and were there found to be all right; also that they were inspected at Louisville before it left .there, and was then' found to be all right. As to the extent of appellee’s injury, the proof is very conflicting, although there seenns to be no doubt under all the evidence as to the fact of his being injured as above stated. The proof on his behalf shows that shortly afterwards he was taken very sick, and for two or three weeks was out of his head; that there was a hard place in his back, and he passed from his bladder a quantity of pus and blood; that after this his capacity to labor was substantially destroyed, and that his injury was probably permanent. The proof for the defendant shows that appellee did not regard his injury as serious at first, and that he had no trouble until he had a violent attack of colic. This, however, would not account for the pus and blood passed from his bladder, nor for other symptoms shown by the evidence. The extent of the injury was a question for the jury, and their verdict fixing the compensation for appellee therefor at $3,000 is not excessive, or palpably against the evidence, if he was entitled to recover.
It is earnestly maintained for appellant that no negligence on its part is shown, as all the facts established are as consistent with the hypothesis of unavoidable accident as that of negligence; and that, the burden being upon the plaintiff to show negligence, he has failed to make out his case. While it is true that the train might have picked up a rod or beam, and dragged it along the track, knocking out the rocks, without the knowledge of those in charge of the train, we are doubtful if they would be excusable for [275]*275not finding this out in two miles and a quarter; as the proof shows that, when anything gets loose, scattering the ballast under the car, some of the rock' will hit the bottom of the car, and a noise is made, so that those running the train know of it when it occurs. Appellee was in no way connected with the running of the train. He was in his proper place, and in the discharge of his duty. He is not chargeable with the negligence of those in charge of the train, for they were in a separate and distinct service from him. It was the duty of appellant to exercise reasonable care in the operation of its trains for the protecr tion of those in its service along its tracks, discharging the duties necessary in the maintenance of the track and the security of traffic. It could not, under this rule, allow its trains to run along, throwing out rocks from it, as this one did, endangering the life and limb to all within its reach. If a train is properly managed and properly run, no such danger is to be apprehended by those near thei track; and, when anything so unusual occurs to such an extent as was shown here the thing itself is prima facie evidence of negligence. Thus, in the case of Railroad Co. v. Wood (Tex. Civ. App.), 63 S. W., 164, the plaintiff, a section hand, was struck by a block of coal thrown from a train which passed him, and it was held that he could recover. This case is stronger than that, for there only one lump of coal fell off while here the rocks were flying for something like two miles. The court said: “There are instances in which the circumstances surrounding an occurrence and giving a character to it are held, if unexplained, to indicate the antecedent or coincident existence of negligence as the efficient cause of the injury complained of. This phrase, which, literally translated, means that ‘the thing speaks for itself,’ is merely a short way of saying that [276]*276the circumstances attendant upon the accident are of themselves of such a character as to justify a jury in inferring negligence as the cause of that accident. There must he reasonable evidence of negligence. But when the thing is shown to be under the management of the defendant or its servants, and the accident is such as, in the ordinary course of things, does not happen if those who have the management use proper care, it affords reasonable evidence, in the absence of an explanation by defendant, that the accident arose from want of care.” In Barnowski v. Helson (Mich.), 50 N. W., 989, 15 L. R. A., 33, a roof, which was being raised by jackscrews, tipped and fell, and it was held that this created a presumption of negligence, and, in the absence of explanatory proof, was sufficient to sustain a recovery for the death therefrom of an employe. So, in Howser v. Railroad Co. (Md.), 30 Atl., 906, 27 L. R. A., 151, 45 Am. St. Rep., 332, the falling of a cross-tie from a ráilroad car, injuring a person walking over a footway running beside the roadbed, was held to create a presumption of negligence; and in this case a number of authorities are collected. It was the duty of the railroad company to exercise a reasonable care in providing appellee .with a safe place to work, and to keep it safe. This obligation to him is not fairly to be distinguished from the case of a person walking on a way besides the roadbed, as in the case last cited, and seems to us to rest on the same principle. We therefore conclude that the court did not err in refusing the peremptory instruction asked by appellant at the conclusion of the plaintiff’s evidence. While it might happen that, although proper care was exercised in the inspection of the train before it started, a rod might get down from some defect not discoverable by ordinary care, the evidence before us does not present this state of case. So far [277]*277as appears, there was no inspection of the engine or tender. At least, the proof shows no inspection of these, as we understand it; and there was proof that rods such as that referred to were in use under the engine and tender. There was no effort to show that the train picked up the rod as it ran along, and we do not well see that such a: thing was at all probable.
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Opinion op the court bt
JUDGE HOBSON
Affirming.
Appellee, W. E. Davis, on December 22,1900, was a track walker in tbe service of appellant on its section near Rocky Hill station. As be was going along tbe track in tbe discharge of bis duty, be saw a train coming, and got to one side, as usual When the train was something like 200 yards, from him, be beard a rattling, and saw rocks throwing out. He then aimed to get further away, and as be turned around tbe rocks hit him in tbe iside, on the leg, and up in the back before he had time to get away. The train was going south, running something like fifty miles an hour. The rocks were thrown out by a rod or something of that sort under tbe bottom of the train, which1 was dragging against .the ballast and ties. Appellee had been south to the end of his section, and was returning. As he went down, there were no dents upon the ties' or ballast, but from the point where he was struck, for something over a mile back, there were dents in the ties and in the ballast, evidently made by the object which threw the rocks out. These dents continued for a mile or more beyond the point where he was hurt, and at the point where they stopped an iron rod was found, six feet long or more, and nearly an inch in diameter. In some places it struck the cross-ties and at others it struck the ballast. It is shown by the proof that when anything gets down under a train it will throw out the ballast in this way. Appellee had seen it happen before, but not so bad as this. It is also shown by the proof that, although these dents upon tbe track continued for something over two miles, no one [274]*274on the train, so far as the proof shows, knew anything of the trouble, or took any 'Steps to right it. The proof for the defendant shows that the cars of the train were inspected at Bowling Green, and were there found to be all right; also that they were inspected at Louisville before it left .there, and was then' found to be all right. As to the extent of appellee’s injury, the proof is very conflicting, although there seenns to be no doubt under all the evidence as to the fact of his being injured as above stated. The proof on his behalf shows that shortly afterwards he was taken very sick, and for two or three weeks was out of his head; that there was a hard place in his back, and he passed from his bladder a quantity of pus and blood; that after this his capacity to labor was substantially destroyed, and that his injury was probably permanent. The proof for the defendant shows that appellee did not regard his injury as serious at first, and that he had no trouble until he had a violent attack of colic. This, however, would not account for the pus and blood passed from his bladder, nor for other symptoms shown by the evidence. The extent of the injury was a question for the jury, and their verdict fixing the compensation for appellee therefor at $3,000 is not excessive, or palpably against the evidence, if he was entitled to recover.
It is earnestly maintained for appellant that no negligence on its part is shown, as all the facts established are as consistent with the hypothesis of unavoidable accident as that of negligence; and that, the burden being upon the plaintiff to show negligence, he has failed to make out his case. While it is true that the train might have picked up a rod or beam, and dragged it along the track, knocking out the rocks, without the knowledge of those in charge of the train, we are doubtful if they would be excusable for [275]*275not finding this out in two miles and a quarter; as the proof shows that, when anything gets loose, scattering the ballast under the car, some of the rock' will hit the bottom of the car, and a noise is made, so that those running the train know of it when it occurs. Appellee was in no way connected with the running of the train. He was in his proper place, and in the discharge of his duty. He is not chargeable with the negligence of those in charge of the train, for they were in a separate and distinct service from him. It was the duty of appellant to exercise reasonable care in the operation of its trains for the protecr tion of those in its service along its tracks, discharging the duties necessary in the maintenance of the track and the security of traffic. It could not, under this rule, allow its trains to run along, throwing out rocks from it, as this one did, endangering the life and limb to all within its reach. If a train is properly managed and properly run, no such danger is to be apprehended by those near thei track; and, when anything so unusual occurs to such an extent as was shown here the thing itself is prima facie evidence of negligence. Thus, in the case of Railroad Co. v. Wood (Tex. Civ. App.), 63 S. W., 164, the plaintiff, a section hand, was struck by a block of coal thrown from a train which passed him, and it was held that he could recover. This case is stronger than that, for there only one lump of coal fell off while here the rocks were flying for something like two miles. The court said: “There are instances in which the circumstances surrounding an occurrence and giving a character to it are held, if unexplained, to indicate the antecedent or coincident existence of negligence as the efficient cause of the injury complained of. This phrase, which, literally translated, means that ‘the thing speaks for itself,’ is merely a short way of saying that [276]*276the circumstances attendant upon the accident are of themselves of such a character as to justify a jury in inferring negligence as the cause of that accident. There must he reasonable evidence of negligence. But when the thing is shown to be under the management of the defendant or its servants, and the accident is such as, in the ordinary course of things, does not happen if those who have the management use proper care, it affords reasonable evidence, in the absence of an explanation by defendant, that the accident arose from want of care.” In Barnowski v. Helson (Mich.), 50 N. W., 989, 15 L. R. A., 33, a roof, which was being raised by jackscrews, tipped and fell, and it was held that this created a presumption of negligence, and, in the absence of explanatory proof, was sufficient to sustain a recovery for the death therefrom of an employe. So, in Howser v. Railroad Co. (Md.), 30 Atl., 906, 27 L. R. A., 151, 45 Am. St. Rep., 332, the falling of a cross-tie from a ráilroad car, injuring a person walking over a footway running beside the roadbed, was held to create a presumption of negligence; and in this case a number of authorities are collected. It was the duty of the railroad company to exercise a reasonable care in providing appellee .with a safe place to work, and to keep it safe. This obligation to him is not fairly to be distinguished from the case of a person walking on a way besides the roadbed, as in the case last cited, and seems to us to rest on the same principle. We therefore conclude that the court did not err in refusing the peremptory instruction asked by appellant at the conclusion of the plaintiff’s evidence. While it might happen that, although proper care was exercised in the inspection of the train before it started, a rod might get down from some defect not discoverable by ordinary care, the evidence before us does not present this state of case. So far [277]*277as appears, there was no inspection of the engine or tender. At least, the proof shows no inspection of these, as we understand it; and there was proof that rods such as that referred to were in use under the engine and tender. There was no effort to show that the train picked up the rod as it ran along, and we do not well see that such a: thing was at all probable. We think the proof fairly shows that this train made the marks on the cross-ties and ballast, and that it was throwing out the rocks as it went along. The evidence for the defendant failed to account for this, or to show the absence of negligence, and we, therefore, conclude that the verdict is not so palpably against the evidence as to justify us in disturbing it. In the case of Brooks v. Railroad Co. (decided at this term) 24 R., 1318, 71 S. W., 507, we held that a section hand who was injured by reason of the breaking of the short lever, which is underneath the body of a hand car connecting the lever with the axle, could not recover merely on proof that the lever broke. That decision rests on the ground that the master who furnishes tools to his servants for them to use in their work is not an insurer of the tools, and is not responsible for a defect, unless he might, by-ordinary care, have discovered it. There was no proof in that case that there was any defect in the short lever, or that there was any neglect of the master in regard to it. The hand car was furnished to the section men to use iln their work, and was run by them. The principle upon which that case rests has no application where the servant receives an injury from the premises of the master being unsafe by reason of matters beyond the sphere of his employment, and over which he has no control.
One of the grounds for new trial relates to a conversation had by some bystanders in the presence of two of the [278]*278jury after the case was submitted to them, while they were permitted to separate under the order of the court. But the proof shows that this occurred from the fact that the man who made the remark did not think at the time of any of the persons present being on the jury, and, in view of the statements of the jurors, we do not think that this was sufficient to warrant a new trial.
Judgment affirmed.
Judge Settle not sitting.
Petition for rehearing by appellant overruled.