Fort Worth & Denver City Ry. Co. v. Smith

• Decision Date: 08 October 1953
• Docket Number: No. 14135.,14135.
• Citation: 206 F.2d 667
• Parties: FORT WORTH & DENVER CITY RY. CO. v. SMITH.
• Court: U.S. Court of Appeals — Fifth Circuit

206 F.2d 667 (1953)

FORT WORTH & DENVER CITY RY. CO. v. SMITH.

No. 14135.

United States Court of Appeals Fifth Circuit.

August 18, 1953.

Rehearing Denied October 8, 1953.

H. M. Muse, Stanley C. Kirk, Wichita Falls, Tex., Seth Barwise, Fort Worth, Tex., for appellant.

Bob L. Wilson, Philip S. Kouri, Wichita Falls, Tex., for appellee.

Before HOLMES, BORAH, and RUSSELL, Circuit Judges.

BORAH, Circuit Judge.

This action was instituted by appellee, who is the administratrix of the estate and the widow of the deceased R. E. L. Smith, under the Federal Employers' Liability Act.¹ Recovery was sought for the alleged wrongful death of Smith during the course of his employment as a switchman and engine foreman in one of appellant's railroad switching yards. The case was submitted to a jury, which returned a verdict in favor of appellee and awarded her damages of $6,600.00. The District Court entered judgment accordingly. Appealing from this judgment appellant contends that the District Court should have directed a verdict in its favor for the reason that appellee failed to adduce any evidence of probative force to show that appellant was negligent, and that in whole or in part Smith's injuries and death resulted proximately therefrom.

The important question before us is whether there was sufficient probative evidence, with the inferences that the jury could draw from it, to support the verdict for the appellee.

Smith was employed as a switchman and engine foreman in appellant's switching yards in Wichita Falls, Texas. The switching yard covers an area of 35 acres on which there are numerous tracks. In addition, the railroad owned and used an additional 16 acres on which there were no tracks and Smith, who had worked for the railroad for about 39 years, performed his duties over the entire area. These yards comprise six tracks which extend in a generally easterly and westerly direction. The yard tracks were numbered from the south to the north. The depot was located at the westerly end of the yards. The "switch shanty", where the employees assemble before going to work, was located north of track 6 at a point about one block north and east of the depot. In front of the depot and between tracks 2 and 3 and between tracks 4 and 5 there were platforms flush with the rails which were used principally, though not to the exclusion of employees, for loading and unloading passengers and for the movement of baggage and express trucks. In the immediate depot area these platforms were constructed of brick. In the area adjoining to the east they were constructed of wooden boards. None of these wooden platforms or board walks lead to the "switch shanty" which is about 55 feet from where the board walk between track 4 and 5 ends. Between the tracks, except where they have these platforms, the area is covered with cinders and gravel.

When the deceased arrived at the depot at about 8:30 A.M. on the morning of January 11, 1949, preparatory to reporting for work the temperature was freezing and the entire yard area was covered with snow, ice and sleet. This condition had existed continuously for the past 30 hours. The records of the U. S. Weather Bureau reveal that from 12:10 A.M. January 10, 1949 to 12:10 P.M. of the following day that there was .34 of an inch of precipitation; that there was continued rain and mist during a part of each six-hourly period and that the temperature never rose above 26°.

An operating safety agreement between the railroad and its employees required that all sidewalks be frequently inspected and that dangerous places be repaired at once; "that all necessary assistance must be given to remove snow from platforms or walks to the passenger stations"; and that all crossings must be kept free from snow, ice, and other obstructions. It further appears that although it was the custom to spread salt or sand or cinders over these areas when it would sleet or snow, no such precautions were taken on the morning in question except in front of the depot where the passengers get off the trains. Corlett, a witness for appellant testified that a crew of ten men could in 4 or 5 hours cover the entire 35 acre switching yard with salt. But, in the opinion of the witness it would be problematical whether it would stay, if precipitation continued and the temperature remained below freezing.

When the deceased alighted from the automobile in which he had been driven to the depot on the morning of January 11 he started walking towards the east and when last seen, prior to his injury, was walking in the track area headed for the switch shanty. When next seen he was lying on the ground close to track number 3. There was no eye witness to the occurrence of the accident. There was no direct evidence — not even a res gestae statement — as to the manner in which Smith was injured. However, the evidence does show that the graveled area in which he was found was very slick. It also shows that Smith had a chronic tired heart.

The gist of this action is the alleged negligence of the appellant in failing to keep its yards free from ice, sleet and snow, which caused the injuries and resultant death of the deceased. The jury, under the charge of the court, necessarily found that the appellant was thus negligent. If, then, there was any evidence of probative force to establish such negligence, the appellant's motion for...