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acting in the performance of his duty in cleating the windows of the car?

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Baker, Botts, Baker & Lovett and J. S. McEachin, for the appellant.

Hill & Hill and Oscar F. Oates, for the appellee.

133 WILLIAMS, A. J. 1. It is not true that servants of railway companies are held bound by the law under all circumstances to obey the orders of their superiors. Obedience to an order may involve personal risk so great and so obvious that no prudent man should take it. The master or his representative has no right to give nor is the servant bound to obey such an order. Nor is it necessarily true that, if work which the master orders the servant to do is extrabazardous, the master is responsible to the servant for the consequence of obedience. If the work be of so dangerous a character as we have just instanced, the servant, if he takes the risk of doing it, will not be heard to complain in the courts. The statement of the rule in the special charge was in an abstract and comprehensive form, without a qualification which was essential to its accuracy. A jury following it according to its terms would be bound to conclude that, if the servant were injured as a consequence of his obedience of an order of his superior, the master would be responsible, in law, for the damage inflicted, whatever might be the character and degree of the danger incurred. The defense involved the contention that the order to seal up the car only meant that the plaintiff should do so while the car was on the sidetrack, and that, in following it upon the main track and there exposing himself to increased perils, plaintiff went beyond the terms of the order. If this is true, and plaintiff was not hurt while acting in abedience to the agent's order, the special instruction had no application. But the plaintiff's theory, reflected in the instruction, evidently was that the order required the work upon the car, whether at one place or the other, and was being executed when the injury occurred. This was a question for the jury, and, in case they sustained this contention of plaintiff, the further question arose for their decision, whether or not the situation involved such risk that plaintiff as a man of ordinary prudence ought not, under all the circumstances, including the order, to have undertaken to do the work as he did. The general charge and special 134 charges given for defendant submitted this question as

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one of negligence vel non, but special charge No. 8, applied in this connection, virtually instructed without qualification, that, if the work was extrahazardous and plaintiff in doing it was obeying the order, defendant would be responsible. This was, in effect, to tell the jury that the order, if obedience to it brought about the injury, removed any question as to plaintiff's negligence as submitted in other instructions. At least the jury might naturally thus reconcile the differing instructions, and such instructions, if not thus reconciled, would be in suah conflict as to confuse the jury. In either view there was error which the appellate courts cannot say was harmless.

We answer the rst question and the first branch of the second question in the negative ssuming that the question of reversal or not depends alone upon the instructions, the pleadings and evidence stated, we answer the second branch of the second question in the affirmative.

2. A defendant has the right to plead inconsistent defenses, and where in one part of an answer he denies or otherwise puts in issue a fact and in another part alleges its existence, the answer cannot be taken to be an admission of such fact: Duncan v. Magette, 25 Tex, 246. Many other rulings of this court affirming this proposition might be cited. But this is true, not because admissions in pleading are not admissible against the party making them, but because a plea, in one part denying a fact and in another part affirming it, cannot, under our statute, be treated as an admission of the fact. Abandoned pleadings when offered in evidence should doubtless be constructed in the same way, and not be admitted as conceding a fact both affirmed and denied. But this rule has nothing to do with the admissibility of pleadings in evidence as tending to show à fact which they distinctly allege. If a fact be admitted in the pleadings on which the case is tried, it is, in general, assumed without other evidence to be conclusively established for the purposes of the trial: Ogden v. Bosse, 86 Tex. 344, 24 S. W.798. The same rule cannot be applied to pleadings superseded by amendment, but it does not follow that distinct admissions in them of particular facts cannot be used as evidence against the party who filed them. The admission of a party thus made is admissible against him under the rule of evidence which allows admissions against interest. Of course they are open to explanation or contradiction like other admissions. It is sometimes the fact that allegations are made by

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the attorney drawing pleadings upon a misunderstanding of the facts and not by authority of the party, and this, of course, may be shown. All that appears here as to this is that the superseded answer contained the allegation offered in evidence, and we think that pleadings which have been filed in court in behalf of a party should be, prima facie at least, regarded at authorized by him and admissible against him, where they admit facts relevant to the issue. This court has recently had occasion to review this subject and to point out that the question under consideration was not decided 135 in Coats v. Elliott, 23 Tex. 606, the expressions in which have given rise to most of the difference of opinion that has arisen in this state: Watson v. First Nat. Bank, 95 Tex. 351, 67 S. W. 314. The case of Barrett v. Featherstone, 89 Tex. 567, 35 S. W. 11, is one in which the question was fully considered in the majority and dissenting opinions of the court of civil appeals of the second district, and in which this court held with the majority affirming the admissibility of the evidence. The plea in that case was signed and sworn to by the party himself, and this made it certain that the admission was his own and perhaps added to its weight as evidence, but its admissibility did not depend on those circumstances. The certificate shows only that the fact in question was alleged in the plea offered in evidence, by which we understand that such fact was admitted and not otherwise put in issue. Such being the case the plea was admissible.

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RIGHT OF RECOVERY BY EMPLOYÉS ACCEPTING EXTRA

HAZARDOUS DUTIES,

1

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I. General Rights and Duties of Master.

a. Right to Engage in Dangerous Business.

b. Duty to provide for Safety of Servant.
II. Assumption of Risk and Contributory Negligence,

General Scope of the Doctrines.
b. Criticism-Unequal Footing of the Parties.

Servant's Fear of Dismissal.
d. Appreciation of the Danger.
e. Judgment of the Parties as to the Danger.
f. Immediate Direction of Master.

g. Method of Doing Work.
III. Obeying Express Orders and Directions.

a. In General.
b. Sudden Commands—Emergency.
c. Positive and Peremptory Commands-Coercion.
d. Assurance of Safety by Master.
e. Work Beyond Scope of Employment.

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1. General Rights and Duties of Master. 2. Right to Conduct Dangerous Business.—The common law confers upon employers the right to decide how their work shall be performed, and to employ men to work in an unsafe place or with dangerous implements, without incurring liability for injuries sustained 'by the workmen who knew, or should have known, the hazards of the service they have chosen to enter: McGorty v. Southern etc. Tel. Co., 69 Conn. 635, 61 Am. St. Rep. 62, 38 Atl. 359; Ragon v. Toledo etc. Ry. Co., 97 Mich. 265, 37 Am. St. Rep. 336, 56 N. W. 612. If an employé enters upon the service, knowing the risks involved, he is regarded as having voluntarily incurred them, unless the employer urges or coerces him into danger, or in some way directly contributes to the injury: See the monographic note to Bazzell v. Laconia Mfg. Co., 77 Am. Dec. 222.

In recent years, kowever, it has dawned upon society that the em. ployer is not the sole party interested in the manner in which he carries on his business, but that the employé and the public have a right to be heard. One of the practical results of this awakening 'has been the enactment of statutes prescribing measures of safety which an employer must take for the safety of his employés. But this is an aspect of the question which it is not our purpose here to discuss. It is adverted to merely to suggest that the almost absolute right of an employer to carry on his business by means of unnecessarily dangerous means, provided his servants contract with a full knowledge and appreciation of the danger, no longer exists; and that a substantial beginning has been made toward affording, by law, a protection to employés which their dependent position places beyond their own power to demand.

b. Duty to Provide for Safety of Servant.-A master owes to his servant the duty of providing a reasonably safe place in which to work, of furnishing reasonably safe tools, appliances, and machinery, and of exercising reasonable diligence to employ reasonably safe and competent men to perform their respective duties. And the servant tas a right to assume that this duty has been discharged: See the monographic note to Mast v. Kern, 75 Am. St. Rep. 591-600; Chieago etc. R. R. Co. v. Maroney, 170 Ill. 520, 62 Am. St. Rep. 396, 48 N. E. 953; Edward Hines Lumber Co. v. Ligas, 172 Ill, 315, 64 Am. St. Rep. 38, 50 N. E. 225; Louisville etc. Ry. Co. v. Hanning, 131 Ind. 528, 31 Am. St. Rep. 443, 31 N. E. 187; Chicago etc. R. R. Co. v. Champion, 9 Ind. App. 510, 53 Am. St. Rep. 357, 36 N. E. 221, 37 N. E. 21; Thompson v. Bartlett etc. Co., 71 N. H. 174, 93 Am, St. Rep. 504, 51 Atl. 633; Nord Deutcher Lloyd Steamship Co. v. Ingebregsten, 57 N. J. L. 400, 51 Am. St. Rep. 604, 31 Atl. 619; Kehler v. Schwenk, 151 Pa. St. 505, 31 Am, St. Rep. 777, 25 Atl. 130; Whipple v. New York etc. R. R. Co., 19 R. I. 587, 61 Am. St. Rep. 796, 35 Atl. 305; Carter v. Oliver Oil Co., 34 S. C. 211, 27 Am. St. Rep. 815, 13 8. E. 419; Downey v. Gemivi Min, Co., 24 Utah, 431, 91 Am. St.

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Rep. 798, 68 Pac. 414; Sroufe v. Moran Bros. Co., 28 Wash. 381, 92 Am. St. Rep. 847, 68 Pac. 896; Northern Pac. Ry. Co. v. Mares, 123 U. S. 710, 8 Sup. Ct. Rep. 321. The master's duty in these respects is continuous. Discharging it in the first instance is not sufficient to exonerate him; he must see to it that the means and instrumentalities for carrying on operations are kept and maintained in a reasonably safe condition: See the monographic note to Buzzell 1. Laconia Mfg. Co., 77 Am. Dec. 220; Houston Biscuit Co. v. Dial, 135 Ala, 168, 33 South. 268; Dyas v. Southern Pac. Co. (Cal.), 73 Pae. 972; Shebek v. National Cracker Co. (Iowa), 94 N. W, 930; Covington Sawmill Mfg. Co. v. Clark, 25 Ky. Law Rep. 694, 76 S. W. 348; Myers v. Hodson Iron Co., 150 Mass. 125, 15 Am. St. Rep. 176, 23 N. E. 631; Elmore v. Seaboard Air Line Ry. Co., 132 N. C. 865, 44 S. E. 620; Boyle v. Union Pac. R. R. Co., 25 Utah, 420, 71 Pac. 988. But he is not bound to make the place of work, the machinery, the tools, and the appliances as safe as they can be made; he is not bound to furnish the newest and safest tools, machinery, and appliances. Ordinary care-the care and diligence exercised by ordinarily prudent men engaged in similar enterprises-is the measurə of his duty, having regard to the dangerous character of the work, and the advanced state of invention and improvements. He is not an insurer or guarantor of safety: See the monographic note to Buzzell v. Laconia Mfg. Co., 77 Am. Dec. 221, 222; Disano v. New Eng. land Steam Brick Co., 20 R. I. 452, 40 Atl. 7; Oliver v. Ohio River R. R. Co., 42 W. Va. 703, 26 S. E. 444; Innes v. Milwaukee, 96 Wis. 170, 70 N. W. 1064. But when an employment is in its nature perilous, he must adopt precautions and safeguards against such perils: Portance v. Lehigh Valley Coal Co., 101 Wis. 574, 70 Am. St. Rep. 932, 77 N. W. 975.· And when safer appliances have been inventel, tested, and come into general use, it is negligence per se for an employer to expose his servants to the hazard of life and limb from antiquated and defective appliances that generally have been discarded by the intelligence and humanity of other employers: Trox. ler v. Southern Ry. Co., 124 N. C. 189, 70 Am. St. Rep. 580, 32 S. E. 550. See, also, Stiller v. Bohn Mfg. Co., 80 Minn. 1, 82 N. W. 981.

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II. Assumption of Risks and Contributory Negligence. a. General Scope of the Doctrines.-If a master has discharged the foregoing duties which the law imposes upon him, then a ser vant voluntarily engaging in a dangerous or extrahazardous employ. ment assumes the ordinary risks incident thereto which are known or obvious to him. And this doctrine applies as well to those risks which first arise or become known to the servant during the service as to those in contemplation at the original hiring. Moreover, it applies alike to all risks, whether they arise from the negligence of fellow-servants, insufficiency of workmen, method of work, defective tools, appliances, and machinery, or dangerous premises: Coal Rup

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