Burns v. Chronister Lumber Co.

• Decision Date: 06 May 1905
• Parties: BURNS v. CHRONISTER LUMBER CO.
• Court: Texas Court of Appeals

87 S.W. 163

BURNS v. CHRONISTER LUMBER CO.

Court of Civil Appeals of Texas.

May 6, 1905.

Appeal from District Court, Cherokee County; Tom C. Davis, Judge.

Action by E. L. Burns against the Chronister Lumber Company. From a judgment for defendant, plaintiff appeals. Affirmed.

Guinn, Norman & Guinn and Chas. B. Emanuel, for appellant. Willson, Box & Watkins, for appellee.

PLEASANTS, J.

Appeal from the district court of Cherokee county. Appellee is a corporation engaged in the manufacture of lumber, and in connection with its sawmill it operates a tram or logging railroad, which it uses for conveying logs from the forest to the sawmill, and for transporting supplies and laborers from the mill to the logging camp, a distance of about 15 miles. There are no cars used on the road except flat or log cars. On the 2d day of January, 1904, appellant, while in the employment of appellee as a common laborer or sectionman on said railroad, was injured by falling or being thrown from the pilot of an engine upon which he was riding, and which was being operated by appellee over its road. This suit was brought by appellant to recover damages for the injuries so received. The petition alleges that the injuries sustained by appellant were caused by appellee's negligence, the acts of negligence alleged being (1) failure of appellee to provide a safe place for appellant to ride; (2) negligently constructing and maintaining its roadbed so as to permit a low or suspended joint between its rails, which caused the engine on which plaintiff was riding to lurch, whereby he was thrown off and injured; (3) failure to stop the train to permit appellant to get off; (4) operating the train at a dangerous and excessive rate of speed when it owed appellant the duty to stop so he could get off; (5) failure of appellee to warn appellant that a pilot was a dangerous place on which to ride, when appellee's engineer knew such to be a fact of which appellant is alleged to have been ignorant.

Appellee answered this petition by general demurrer and general denial and by special pleas of contributory negligence on the part of appellant in getting upon the pilot of the engine and in attempting to alight therefrom while the engine was in motion, and of assumed risk; that appellant knew, when he entered the employment of the appellee, he was expected to ride to and from his work on the log train, and knew the condition of the road and the speed and manner in which the log train was generally operated. It also pleaded that if appellee's employés were guilty of negligence in the operation of the train, which caused appellant's injuries, such negligence was that of a fellow servant, and appellee was not liable therefor. After hearing the evidence, the court below instructed the jury to return a verdict for the defendant, which was accordingly done, and judgment rendered in conformity with such verdict.

The evidence shows that plaintiff was employed as a section hand, and it was his duty to assist in keeping the railroad track in repair. He was an experienced sawmill man, having worked for several years at different mills, some of which operated railroads like the one operated by defendant. On the day he was injured, he, with seven other men engaged in like work, was ordered by their foreman to get on a log train then at a camp on the road, and ride to a point on the road where they were to load a lot of ties. This train was composed of an engine and tender and eight flat cars loaded with logs, and was on its way from the forest to the mill. The circumstances under which he got on the pilot of the engine and those immediately attending his injury are thus detailed by the plaintiff: "Defendant never provided any cars to ride on. We would ride on the engine, tender, or log cars, as we chose. That was understood by us all, that we would select the place on the train...