Ft. Worth & D. C. Ry. Co. v. Copeland

• Decision Date: 20 December 1913
• Parties: FT. WORTH & D. C. RY. CO. v. COPELAND.
• Court: Texas Court of Appeals

164 S.W. 857

FT. WORTH & D. C. RY. CO. v. COPELAND.

Court of Civil Appeals of Texas. Ft. Worth.

December 20, 1913.

On Motion for Rehearing, January 24, 1914.

Further Rehearing Denied February 28, 1914.

Appeal from District Court, Wichita County; P. A. Martin, Judge.

Action by Willis Copeland against the Ft. Worth & Denver City Railway Company. From a judgment for plaintiff, defendant appeals. Reversed and remanded, with instructions.

Carrigan, Montgomery & Britain and Chas. C. Huff, all of Wichita Falls, and Thompson & Barwise, of Ft. Worth, for appellant. Mathis & Kay, of Wichita Falls, for appellee.

SPEER, J.

Willis Copeland sued the Ft. Worth & Denver City Railway Company to recover damages for personal injuries sustained by him while in the service of the defendant company as switchman, and while engaged in its yards at Wichita Falls in the work of switching some cars engaged in interstate commerce. The plaintiff had a judgment for $17,000, and the defendant has appealed.

A brief statement of the facts will suffice for the purposes of this opinion: At the point in appellant's yards where the accident occurred, the company has several tracks known, respectively, as tracks No. 1, No. 2, and No. 3, paralleling its main line, each of which is reached from the main line by a track known as the "south lead," Two crews known, respectively, as the north and south yard crews were at work in the yards exchanging cars of freight, and otherwise shifting cars from one track to another. Appellee belonged to the north crew, and was what is known as "fieldman" of that crew. In the discharge of his duties, he was in the yards about track No. 2 in the vicinity of a detached car known as I. & G. N. car No. 2550, about 175 feet north of where track No. 2 leaves the south lead line. He had received information from one Miller, the foreman of the south yard crew, that Ben Smith's crew, to which appellee belonged, was in the north yards, and would push his train through on track No. 2. In anticipation of Smith's pushing through, appellee went to the north end of I. & G. N. car No. 2550 to prepare the coupler ready to couple that car onto Smith's train, and, while engaged in that task, a string of three cars, which had been detached and kicked in on track No. 2 from the south by Foreman Miller, struck the I. & G. N. car, knocking appellee down and injuring him in the manner alleged in his petition.

The grounds of negligence alleged and submitted as a basis for recovery were: First. That the three cars were kicked in free from care and control; second, that they were so kicked in at too high a rate of speed, causing too great an impact with the standing car; and, third, a failure to notify or inform appellee that this cut of three cars would be kicked in onto track 2.

The appellant requested three several charges withdrawing from the consideration of the jury the issues made by these three alleged grounds of negligence. We have carefully considered the evidence bearing upon each of these issues, and are of the opinion these charges should have been given and each of the issues withdrawn from a consideration of the jury; in effect, that a summary instruction should have been given for the defendant company.

As to the first issue—that is, that the company was negligent in kicking the three cars in on track 2 free from care and control —we find that such cars were cut loose from Foreman Miller's train, and to use the language of the yards, were "shunted in" on track No. 2, free from care and control in the sense that no employé was stationed on said cars, or either of them, or about them, to control their movements, but all the evidence, without dispute, shows that this was the usual and customary way of doing such work, and there is no evidence that the same ever was done, or should have been done, in any other way.

As to the second ground—that is, that the cars were propelled at too high a rate of speed—there is no testimony estimating the speed at more than five to six miles an hour at the time the cut was made, and the witnesses giving this testimony further stated that this speed would decrease, and did decrease, as the cars rolled north along the track toward appellee. No witness testified that this was an unusual or an unnecessary speed, or that the same was dangerous. Appellee's testimony, showing that the cars, after striking and knocking him down, rolled some distance further before stopping, could at most constitute only a scintilla of evidence, but lacks that definiteness necessary to support a judgment, to the effect that the speed at which the cars were thrown onto the track was a negligent one.

With respect to the third ground of negligence —that is, that appellee was given no warning of the approach of the cut of cars— we find that such warning was not given; but the undisputed facts further show that it was not customary or usual to give such warning. There was no rule of the company requiring it, and no witness testified that that duty devolved upon Miller, or any one else for the company. In short, upon all the issues submitted, we find that the acts and conduct of appellant were not negligent, but were done and performed in the usual and customary manner with appellant and other railroads for doing such things. Moreover, the evidence shows, without dispute, that appellee was an experienced switchman, and thoroughly familiar with the work at which he was engaged, and thoroughly familiar with the customary methods of doing the work which he was engaged in doing at the time he received his injuries, and therefore conclude that he assumed the risk of the injuries received by him. He knew that such cars as were kicked in by the various crews onto these side tracks were not under the control and care of an employé, that necessarily and customarily they were kicked in at different rates of speed, sometimes barely reaching the desired destination, and again...