Texas & P. Ry. Co. v. Putman

Citations

• 120 F. 754
• 57 C.C.A. 58
• 1903 U.S. App. LEXIS 4529

Syllabus

<p>1. Railroads — Negligence—Brakeman—Personal Injuries.</p> <p>In an action by a brakeman for injuries alleged to have been caused by the. engineer’s negligent application of the air brakes, resulting in his being thrown from the engine, the evidence considered, and held to make a question for the jury as to the engineer’s negligence.</p> <p>S. Servants — Negligence of Fellow Servants — Assumption of Risk.</p> <p>Under the statutes of Texas a servant of a railway company does not assume the risk of injury through the negligence of his fellow servants.</p> <p>8. Same — Contributory Negligence — Burden, of Proof.</p> <p>In an action by a brakeman for injuries alleged to have been caused by the engineer’s negligence in suddenly applying the air while plaintiff was on the pilot of the engine preparatory to getting off to run ahead and open a switch, plaintiff testified that he was not told to go on the pilot, and there was no rule either requiring or forbidding it, but that it was necessary in order to reach the switch in time to open it ahead of the engine. Held not to show contributory negligence, so as to relieve defendant of the burden of proving it.</p> <p>4. Same — Instructions—Discovered Peril.</p> <p>In an action by a brakeman for injuries alleged to have been caused by the engineer’s negligence in suddenly applying the air while plaintiff was on the pilot of the engine, so as to throw him off in front of the engine, defendant alleged that plaintiff’s position on the engine was one of danger, and that he was guilty of contributory negligence in being there. There was evidence that the engineer knew of plaintiff’s position. Held, that a charge on the doctrine of discovered peril was justified.</p> <p>¶ 2. Assumption of risk incident to employment, see note to Chesapeake & C. R. Co. v. Hennessey, 38 C. C. A. 314.</p>