Atchison, T. & S. F. Ry. Co. v. Sowers

• Citation: 99 S.W. 190
• Parties: ATCHISON, T. & S. F. RY. CO. v. SOWERS.<SMALL><SUP>*</SUP></SMALL>
• Decision Date: 19 December 1906
• Court: Court of Appeals of Texas

99 S.W. 190

ATCHISON, T. & S. F. RY. CO. v. SOWERS.^*

Court of Civil Appeals of Texas.

December 19, 1906.

Rehearing Denied January 16, 1907.

Appeal from District Court, El Paso County; J. M. Goggin, Judge.

Action by George A. Sowers against the Atchison, Topeka & Santa Fé Railway Company. From a judgment for plaintiff, defendant appeals. Affirmed.

J. W. Terry and A. H. Culwell, for appellant. Patterson & Wallace, for appellee.

FLY, J.

This is a suit to recover damages arising from personal injuries inflicted on appellee, in New Mexico, through the negligence of appellant. Appellant set up in its answer a statute of New Mexico, providing, among other things, that suits for personal injuries received in that territory shall not be prosecuted in any but the territorial courts. The court sustained exceptions as to that part of the answer setting up the provision as to such cases being prosecuted in territorial courts alone. A trial by jury resulted in a verdict and judgment for appellee in the sum of $5,000.

We conclude that the facts show that appellant was guilty of negligence in having its track in such condition that the foot of appellee, who was standing on the front of the pilot, was caught between the pilot and a frog or guard rail and so crushed that amputation became necessary and was performed. Appellee was an employé of appellant, and was in discharge of his duty as head brakeman, and was riding in the customary way on the pilot of the engine to a place where some switching was to be done. We find that he was not guilty of contributory negligence, and that he was injured in the sum found by the jury through the negligence of appellant.

The first assignment of error complains of the admission of testimony tending to show that it was a custom of the employés of appellant to ride on the pilots of its engines while engaged in switching in the yards. The objection urged to the testimony, when appellee was offered to establish it, was that, if "other people may have habitually ridden in dangerous places, it would not authorize him in doing so." The objection was reiterated when each of the other five witnesses testified on the subject. The objections are amplified in the assignment so as to include the lack of knowledge of the existence of such custom on the part of appellant, and that it "was wholly irrelevant and immaterial and hearsay." The statement is so meager as to be almost useless, and in at least two instances the references to the pages of the record where the bills of exceptions were written were incorrect. The rules as to statements under propositions must be complied with, if parties desire a consideration of their assignments of error. If, under the old system of preparing statements of facts, full statements of the evidence touching on assignments were required, how much more are they needed when for a statement of facts appellate courts, under the statute, are furnished with a mixture of all kinds and conditions of questions and answers from which must be winnowed the pertinent facts. The assistance of the attorneys must be required to aid the courts in arriving at the facts under the present cumbersome system. While the assignment of error is not followed by a full statement, as it should be, it can be said that the questions raised by it have been decided adversely to appellant. Railway v. Beam (Tex. Civ. App.) 50 S. W. 411; Railway v. Waller, 27 Civ. App. 44, 65 S. W. 210. These cases also dispose of the second, sixth, and seventh assignments of error, which practically present the same questions as are found in the first. Railroad companies are charged with knowledge of the manner in which their employés customarily perform their labors, and have so performed them for years, and the burden does not rest upon a plaintiff to prove that some officer of theirs knew of such custom. If appellant did not know how its work was being performed, it ought to have known it.

The court did not err in refusing to charge the jury: "At the request of the defendant you are hereby instructed that, if you believe from the evidence before you that a position on the pilot of an engine was one of danger, and particularly in event of a collision with any obstruction of any kind on the track, and that plaintiff's presence on the pilot contributed approximately to the injuries he sustained, then he cannot recover herein, and your verdict must be for the defendant." The charge assumed that, if it was dangerous to ride on a pilot, and riding there contributed to the injuries, appellee was guilty of negligence, and appellant was not. Those were questions to be determined by the jury, and not a matter of law to be determined by the court. The court gave a charge covering the case if the jury found that it was contributory negligence for appellee to ride on the pilot of the engine.

A portion of the seventh paragraph of the charge of the court is segregated from the other parts and criticised, as assuming certain facts and as being upon the weight of the evidence. The criticism has no basis whatever when the whole of the paragraph is read and construed together. Every fact is left to be found by the jury, as is apparent from a reading of the charge, which is as follows: "If therefore you believe and find from the evidence, and a preponderance thereof, that the defendant, the Atchison, Topeka & Santa Fé Railway Company, permitted the roadbed, track, or sidetrack over which the engine upon which plaintiff, George A. Sowers, was riding, to become soft and out of repair, so that as a consequence (if you so find) the point of the rail dropped so low that the engine in passing over it sagged or dropped down so low that the pilot thereof came in contact with or struck a frog, that such acts, if any, constituted negligence upon...