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

• Decision Date: 25 January 1911
• Citation: 134 S.W. 358
• Parties: ATCHISON, T. & S. F. RY. CO. v. CLASSIN.<SMALL><SUP>†</SUP></SMALL>
• Court: Texas Court of Appeals

134 S.W. 358

ATCHISON, T. & S. F. RY. CO. v. CLASSIN.^†

Court of Civil Appeals of Texas.

January 25, 1911.

Rehearing Denied February 8, 1911.

Appeal from District Court, El Paso County; Jas. R. Harper, Judge.

Action by A. J. Classin against the Atchison, Topeka & Santa Fé Railway Company. From a judgment for plaintiff, defendant appeals. Modified and affirmed.

Terry, Cavin & Mills and A. H. Culwell, for appellant. Patterson & Wallace, for appellee.

JAMES, C. J.

This action was by appellee, alleging: That he was an employé of the El Paso & Southwestern Railway Company at Deming, N. M., his employment being that of car inspector. That on November 27, 1908, the defendant, the Atchison, Topeka & Santa Fé Railway Company, maintained yards at Deming wherein cars were repaired, switched, moved, and made up into trains by its employés. That it was plaintiff's duty to inspect all cars in said yards that were to be received from defendant by his employer, the El Paso & Southwestern Railway Company. That on said date a car was there which was to be thereafter delivered to the lines of El Paso & Southwestern System. That it was part of plaintiff's duty, as well as the usual and customary practice, for him to inspect said car in order to ascertain whether or not the same was safe to be operated and hauled over the lines of his employer. That he inspected it, and found it unsafe, and notified defendant and its employés that, before his line would accept same, it would be necessary for them to make certain repairs, and on the morning of the 27th he was informed by defendant's employés that they would proceed to repair the car. That about 2:30 p. m. of said day plaintiff went to the yard to inspect same and to ascertain whether or not it had been repaired, it being then located on ripwork track No. 3, which was used to store disabled cars on which light repairs were to be made. That on reaching same plaintiff discovered there tools of defendant's car repairers, and, in order to ascertain whether or not the repairs were properly made or finished, it became necessary and a part of his duty, and it was the customary practice, to go under the car in order to inspect same, and while there defendant's employés negligently switched a car in on said rip track with great force and violence, and without warning, which car struck the car ahead of the one under which plaintiff was inspecting, causing the latter to move and injure plaintiff. That plaintiff was rightfully in said yards inspecting the car in the usual and customary manner and way in which the work had formerly been done by plaintiff and other persons in said yards. That defendant and its agents knew at said time that plaintiff and other persons were required to go into the yards and inspect cars under like circumstances, and that in inspecting same it became necessary and a part of their duty to go under the cars. That with such knowledge defendant's employés in charge of one of its switch engines on this occasion in a negligent manner made a running or flying switch and threw a car into said rip track with great force and violence at a dangerous speed without taking precautions to warn plaintiff, whereby it struck the car ahead of the one plaintiff was under, and caused him to be injured as aforesaid.

Plaintiff alleged, in addition: That said rip track was used exclusively as a repair track at and before the happening of the event. That defendant had a rule in force and effect at the time and prior thereto which required its employés when repairing cars on said track to place on the end of the car next to the switch a flag, and to keep same stationed on said car until the work was finished, and that no person or employé of defendant was authorized to move said flag except the employés who were making repairs on cars situated on said track, which rule was for the protection of all persons, including plaintiff, whose duty called them to go in, around, or underneath cars located on the track. That a short time prior to this accident and while defendant's employés were repairing the said car plaintiff saw that said rule had been complied with and said flag placed on the front car. That, when he approached the car on the occasion of his injury, he came up from an opposite direction, and, noticing there the tools of defendant's employés who were repairing the car, he had good reason to believe, and did believe, that said rule was observed, and went under the car to make an inspection. That plaintiff believes and alleges that a short time prior to the accident defendant's foreman in charge of the work with knowledge that the repairs had not been completed, and with knowledge that plaintiff would have to inspect the car when finished, caused the flag to be removed, without warning plaintiff of the fact, and that, therefore, defendant and its agents were guilty of negligence, it being their duty to refrain from moving the flag until the work had been finished and the car examined and inspected by plaintiff. That, if the employés in charge of the switching of said car had exercised ordinary care in switching same, the accident to plaintiff would not have occurred, and that, if defendant's employés had obeyed the rule and not removed the flag, the accident would, in all probability, not have happened.

Defendant answered by general demurrer, denial, and pleaded specially contributory negligence; that plaintiff had no business under the car; that no one knew he was there; that he took no steps to protect himself; and that appellant had the right to move the cars without warning to him; also assumed risk. Defendant further pleaded fellow servant, alleging that the common law prevailed in New Mexico as to fellow servants, and that under such rule defendant was not liable to plaintiff. Defendant also set up that, if plaintiff was injured as claimed by him, his cause of action has been released, discharged, and satisfied by his receiving the sum of $215 paid him by the El Paso & Southwestern Railroad Company of Arizona and the El Paso & Southwestern Railroad Company of Texas and other companies, including this defendant, and releasing them according to his written receipt, statement, accord, and satisfaction, annexed to the petition. The release attached recited payment of $215 paid by the El Paso & Southwestern Railway Company and certain other railway corporations whom it purported to release, but it did not mention or include this defendant. By supplemental petition plaintiff alleged that he was not an employé of defendant; that defendant at the time of the accident had no authority or control whatever over plaintiff, and the work he was engaged in was for the El Paso & Southwestern System, and therefore he was not a fellow servant with defendant's employés; that defendant and plaintiff's master, the El Paso & Southwestern System, were not joint tort-feasors. in respect to this injury, and that, therefore, the release pleaded by defendant is wholly without consideration so far as this defendant is concerned, and is no bar to plaintiff's action, and he is not bound by the terms and conditions of the release, or by reason of his acceptance of the money mentioned in the release. The verdict was for plaintiff in the sum of $2,500.

The first assignment is that the court erred in refusing a peremptory instruction for the defendant because plaintiff had totally failed to make out a case of liability on the part of defendant. Appellant's contention under this assignment is as follows: "If it shall be held that plaintiff and those whose acts occasioned the injury were not fellow servants, then the appellant says that he is not entitled to recover, because he was a volunteer at the time of the accident, and for whose protection the obligation of lookout or caution did not obtain. It was his duty to see that those steps were taken which would insure his protection, as he was volunteering his service at a time and place not required, and the evidence fails to show that any one knew he was...