Pilkenton v. Gulf, C. & S. F. Ry. Co.

• Citation: 7 S.W. 805
• Parties: PILKENTON <I>et al.</I> v. GULF, C. & S. F. RY. CO.
• Decision Date: 13 March 1888
• Court: Supreme Court of Texas

7 S.W. 805

PILKENTON et al. v. GULF, C. & S. F. RY. CO.

Supreme Court of Texas.

March 13, 1888.

Commissioners' decision. Appeal from district court, Austin county; H. FEICHMUELLER, Judge.

This was an action against the Gulf, Colorado & Santa Fe Railway Company for damages for the killing of Frank Pilkenton, brought by Sofora Pilkenton, wife of deceased, and his minor children. Judgment for defendant, and plaintiffs appeal.

Bell & Shelburne, F Charles Hume, and Seth Shephard, for appellants. Chesley & Haggerty, for appellee.

ACKER, J.

This suit was brought by appellants, Sofora Pilkenton, widow of Frank Pilkenton, and Ella, Ellis, Eva, and John, minor children of Frank Pilkenton, to recover of appellee $15,000 damages resulting to them from the death of Frank Pilkenton, which it was alleged was caused by the negligence of appellee. The deceased had been employed by appellee as a brakeman but a few days when he received the injuries which caused his death, while assisting in making what is called a "running or flying switch," which feat is described as being performed in the following manner: The train is put under such headway at sufficient distance from the switch that the train may be uncoupled, and, by running faster, pass the switch far enough ahead of the rear portion of the train to allow the switch to be thrown, and the rear portion of the train to enter it. The conductor in charge of the train uncoupled the cars between a flat car at the rear of the front portion of the train and a box car at the front of the rear portion of the train. By direction of the conductor the deceased took position on the flat car at the rear end of the front portion of the train, for the purpose of holding it with the brake after it passed the switch, and the conductor uncoupled the cars, and climbed upon the top of the box car of the train to "ride" that portion of the train into the switch. When the two portions of the train had been separated by the space of about 60 feet, the deceased fell from the flat car, and was run over by the portion of the train that the conductor was riding into the switch. The conductor, who is the only witness who testifies to the manner in which the deceased received his injuries, says that, after the cars were uncoupled, he signaled the engineer to move off with the front portion of the train, and then climbed upon the top of the box car, when he looked towards deceased, and saw him "start or stumble" towards the brake, and fall from the car on the track. Flying switches were expressly forbidden by rule adopted by appellee for the government of its employes, but it was the custom of employes to disregard the rule, and make flying switches to save time. The company furnished employes with necessary appliances for switching cars in a manner much less dangerous than the flying switch Employes disobeying the rule prohibiting the flying switch were punished by discharge whenever such act of disobedience came to the attention of appellee's general officers. The deceased had but little experience as a brakeman, and it does not appear whether or not he knew that the running switch was more dangerous than switching by other modes. It was appellee's custom to furnish its employes with the rules prescribed for their government, but it does not appear whether or not the deceased was informed of the rule prohibiting the flying switch. Under this state of facts the court instructed the jury to return a verdict for appellee, in which it is contended that the court erred because "the pleadings and evidence showed a case requiring of the court a submission of the facts to the jury by appropriate instructions, and the jury...