Carter v. Kansas City Southern Ry. Co.

• Decision Date: 14 March 1913
• Citation: 155 S.W. 638
• Parties: CARTER v. KANSAS CITY SOUTHERN RY. CO.
• Court: Texas Court of Appeals

155 S.W. 638

CARTER v. KANSAS CITY SOUTHERN RY. CO.

Court of Civil Appeals of Texas. Texarkana.

March 14, 1913.

Rehearing Denied April 3, 1913.

Appeal from District Court, Bowie County; P. A. Turner, Judge.

Action by C. W. Carter against the Kansas City Southern Railway Company. From a judgment for defendant, plaintiff appeals. Reversed and remanded.

Wolfe, Maxey, Wood & Haven, of Sherman, for appellant. Glass, Estes, King & Burford, of Texarkana, for appellee.

HODGES, J.

In this case the appellant, C. W. Carter, seeks to recover a judgment for damages for personal injuries received September 21, 1911, while in the service of the appellee. The pleadings and the evidence show that, at the time of the injury, the appellant was the head brakeman on a local freight train operated by the appellee between Texarkana, Tex., and Shreveport, La. The crew to which the appellant belonged had orders to pick up an empty refrigerator car at Myrtis, La., on their return from Shreveport to Texarkana. When their train arrived at Myrtis, it went in on the siding in order to permit other trains to pass. The car to be picked up was also on the siding, at the north end, and was pushed on north far enough to allow the entire train to clear the main line. The engine was then detached from the train, and this car was pushed on still farther north beyond the switch stand and onto the main line again. Appellant was directed to manipulate the switch in placing the car in its proper position in the train. As the engine and car passed over the switch stand going onto the main line, John Bress, a brakeman who was riding on the pilot of the engine, gave the appellant a signal indicating that they were to make a flying switch in order to get this car on the siding to be incorporated into the train behind the engine. When the engine and car started back south, appellant turned the switch so as to allow the engine to pass on down on the main line. He then immediately reversed the switch in order to throw the refrigerator car on the siding where the train stood. In making this last turn, his back was towards the approaching car. As the car passed, one of the doors was standing open and struck appellant on his shoulders and head, inflicting the injuries of which he complains. The negligence charged is thus stated in the appellant's petition: "(a) In furnishing appellant with defective appliances with which to perform his work in that appellee furnished a car on which there were defective doors, in that the fastenings, which were to keep said doors closed, were old, worn, defective, broken, parts of the same gone, out of repair, and unfit for use, and would not stay closed on account of said defective conditions. (b) That it was the duty of appellee to inspect the car for defects; that the said defective conditions would have been discovered by proper inspection, and that appellee failed to make such inspection." The defendant railway company answered by general denial, a special plea of contributory negligence, and assumed risk, alleging, in substance, that appellant knew of the defects, if any, that were in the car, or by the exercise of ordinary care could have known of them, and of the danger likely to result therefrom, and assumed the risk; that the railway company had promulgated a rule prohibiting a running switch when practicable to avoid it, and, when made, that great care must be taken to prevent accident, and the conductors must attend the switch; that the duty of operating the switch stand on the occasion in question being that of the conductor, the appellant, in undertaking to perform the duty, was guilty of negligence and assumed the risk of injury; that appellee had also promulgated a rule that employés of every grade were required to examine, before using them, the machinery and tools that they were expected to use, and to see that they were in proper condition; that at places where there are no car inspectors conductors must, with the assistance of the trainmen, thoroughly inspect all cars offered and be sure of their safe condition before taking them, and that they must see that the doors of empty cars are closed and securely fastened. It was further alleged that appellee had no car inspector at Myrtis, and this was known to the appellant, and that, with full knowledge of the danger in failing to do so, he made no effort to see that the car doors were closed and fastened; that, in failing to comply with the rules, he was guilty of negligence contributing to his injury, and also assumed the risk. At the conclusion of the evidence, the court gave a peremptory instruction directing a verdict for the railway company, and, from the judgment entered, this appeal is prosecuted.

Carter testified that his train left Texarkana the day before he was injured, and carried this particular car, loaded with ice, to Myrtis, where it was left to be unloaded. Before they arrived at Myrtis on that trip, it was discovered that the doors of this car on one side were open, and that the ice was falling out. The train was stopped and the doors were closed and fastened by the conductor. Carter says the last time he saw this car before the accident it was at Myrtis and was attached to the rear end of another freight train. He denies that he knew, at the time of their arrival at Myrtis on their return from Shreveport, that this was the same car which his crew had carried to Myrtis the day before. He says he never paid any attention to the car; never thought anything about it. This car was equipped with double doors on each side that swung out like those generally used on refrigerator cars. He knew that a refrigerator door, if not fastened, would swing out; that some of them could not be closely shut, and that, if not fastened in some way, they would come open, and were liable to open from a jar or jolt.

John Bress, the swing brakeman, testified that, after their arrival at Myrtis on their return trip, they had orders to take this car back to Texarkana. After coupling to this car, Carter went to the switch, unlocked and threw the switch to let the engine and car out on the main line, and remained at the switch stand. As they pulled by, he gave Carter the trainmen's signal for a running switch. They then pulled up on the main line about four car lengths from the switch. As soon as the engine stopped, they started back. He gave the engineer a slow signal, which afforded an opportunity to uncouple the car from the engine. The car was then rolling, and the engineer started rapidly down the main line and passed on by the switch stand ahead of the car. He saw the car turn in on the passing track; it kept rolling down, and stopped about 50 feet from the head end of the train, and the engine went on down to the water tank. As the refrigerator car, in going in on the passing track, passed Carter, who was standing at the switch stand with his back towards the approaching car, one of the east doors which was standing open struck Carter across the shoulders and the lower part of the neck and knocked him into the switch stand. Just an instant before the door struck Carter, he (Bress) saw the door standing open for the first time. He had no time to give Carter warning before he was struck. He did not see the door fly open, as he was facing the engineer, until after the engine passed over the north passing track switch. When he turned around, the car was going in on the passing track, and he saw the open door just before Carter was struck by it. The car was at the time traveling at the rate of about five miles an hour. As to the fastening on the door and the cause of its coming open, he testified: "This door came open on account of the door being in bad order, due to the lower or bottom part of the lever, with which a refrigerator door is fastened, being broken off. The doors on this car had the same fastenings as are usually on refrigerators; that is, one door fits over the other door and holds the same in place. This door which fits over the other is closed by a lever which extends from the facing above the door to the sill below the door; there being a hasp on the facing and sill to hold the lever. This lever is in two pieces, and each piece is a long, narrow strip of steel or iron. The pieces are held at the center of the door by a rotary connection from which a handle extends. When this handle is pushed upward, the upper strip of iron is pulled down out of the socket on the facing above the door, and the lower strip or lever is pulled up out of the socket on the sill below the door, and, when in this position, the door can be pulled open. When the handle is pulled downward, both levers are pushed into their respective sockets, and this holds the door closed. The bottom part of the lever was missing entirely; it was broken off right at the handle, and there was no way in which the door could be fastened at the bottom with the apparatus on the door —that is, with the proper fastening. With the bottom part gone, the top could not be held in place—that is, the top part of the lever would work out of the socket through the motion of the train and permit the door to swing open. These doors would fly open or come open through the motion of the train, which worked the upper part of the facing lever out of the socket on the facing above the door; there being no lower part of the lever fastened in the socket on the sill below the door, and therefore no weight on one side of the rotary connection to equalize the natural tendency of the weight of the upper part of the lever to drop downward and out of the socket."

Appellee introduced in evidence the following rules which had been promulgated by the railway company: "General rules on page 4. General rule A: Employés whose duties are prescribed by these rules must provide themselves with a copy." "B. Employés must be conversant with and obey the rules and special instructions. If in doubt as to their meaning, they...