Chicago, R. I. & G. Ry. Co. v. Frederick

• Decision Date: 04 June 1934
• Docket Number: No. 4242.,4242.
• Parties: CHICAGO, R. I. & G. RY. CO. v. FREDERICK.
• Court: Texas Court of Appeals

Page 275

74 S.W.2d 275

CHICAGO, R. I. & G. RY. CO. v. FREDERICK.

No. 4242.

Court of Civil Appeals of Texas. Amarillo.

June 4, 1934.

Rehearing Denied September 10, 1934.

Appeal from District Court, Hutchinson County; E. J. Pickens, Judge.

Action by C. B. Frederick against the Chicago, Rock Island & Gulf Railway Company. Judgment for plaintiff, and defendant appeals.

Affirmed.

Stone & Guleke, of Amarillo, for appellant.

Morrison, Morrison & Morrison, of Oklahoma City, Okl., and Norman Coffee, of Stinnett, for appellee.

JACKSON, Justice.

This suit was instituted in the district court of Hutchinson county by appellee, C. B. Frederick, against the appellant, the Chicago, Rock Island & Gulf Railway Company, to recover damages for personal injuries alleged by appellee to have been sustained by him while performing his duties as head brakeman on a freight train engaged in interstate commerce and operated by the Railway Company.

He alleged, so far as necessary to this appeal, that his injuries were occasioned by the negligence of the appellant in the way and manner it constructed and maintained its road at the place of the injury.

The appellant answered by general denial; that the train was engaged in interstate commerce; that the appellee had been warned of the danger of dirt and rock slides on the line where he was injured; that such danger was obvious and known to him; and pleaded the defenses of assumed risk and contributory negligence.

In response to special issues submitted by the court the jury found, in effect, that the appellant maintained its road at the time and place where appellee was injured in such a manner that a loose rock from the hillside fell on the track; that it was negligence to so maintain the road and such negligence was the proximate cause of the injury; that appellee was not guilty of contributory negligence; that the injury was not the result of an unavoidable accident, and assessed appellee's damages at the sum of $13,500.

In response to special issues requested by the appellant and given by the court, the jury found, in effect, that appellee, while riding on the rear footboard of the locomotive tender, did not know and appreciate the danger of possible injury to himself from a collision between the tender and obstructions which might be on the track; should not have known and appreciated the possible injury from a collision between the locomotive and obstructions which might be on the track; and that from his experience, mental capacity, and opportunity of observing, he did not appreciate the danger of possible injury to himself from a collision between the locomotive and some object that might fall from the face of the cut on to the track.

That appellee "should have known that there would possibly be objects or obstructions on the track with which the locomotive might collide at the time he was riding upon the foot board" and did "know that there would possibly be objects or obstructions on the track with which the locomotive might collide at the time he was riding upon such foot board."

On these findings judgment was awarded in favor of appellee for damages in the sum of $13,500 and costs of suit.

The appellant, by several propositions which will be considered together, contends the findings of the jury to the effect that appellee did not know and appreciate the possible danger and from his experience, mental capacity, and opportunity of observing did not appreciate the possible danger to himself from a collision between the tender and the rock which had fallen on the track, are not supported by the testimony, and that the uncontradicted evidence shows that appellee, as a matter of law, assumed the risk of being injured by said collision.

The record shows that appellee was injured between the stations of Sanford and Antelope, at 1:30 a. m., on appellant's line of railway which, where the accident occurred, extends along the bank of a creek north of the channel, and that north of the track there is a hill rising nearly perpendicular for about forty or fifty feet, then slopes upward several hundred feet, and on the hill there are rocks and boulders. The grade of the road east out of Sanford is 3.6 per cent., and on account of this grade and the size of the engine, in order to get the train from Antelope to Sanford, it was necessary to divide it into three sections and pull one section up the grade at a time. The appellee accompanied the first section from Antelope to Sanford, where he stayed while the engine backed down and brought up the second section. On the way to Sanford with the first section the engine ran into and over some cattle. When the engine was ready to back down to Antelope for the third and last section of the train, appellee in discharging his duty mounted the footboard at the rear of the tender. The footboard was for the employees to ride on when the engine was backing. The appellee maintained his position on the footboard until the tender collided with the rock that had fallen from the hill on the track between the rails, crushing the footboard and inflicting injuries on appellee. The headlight was at the top of the tender and threw a light out above the track, but not down on the track. The appellee carried a lighted lantern and from his position on the rear footboard of the tender could, by turning an angle cock within his reach, put on the emergency brake. Had he been riding on the top of the tender he would not have been in position to put on such brake. He was looking for obstructions, but did not see the rock in time to avoid the collision. The train at the place of the injury was operating under a slow order and the employees were required to take extra precaution and be in position to assist in stopping the train should any emergency so require. The company had furnished the train crew with a time-table, advising that due to the fact that the fills, on the road where the accident occurred, had not fully settled, that there "is considerable dirt and rock on sides of cuts, all trains must watch carefully for rock and dirt slides and fill settlings—particularly after heavy rains." Appellee was 48 years old, had farmed until 1911, then engaged in the railroad business as a brakeman until 1926, had been promoted to the position of a conductor, but because there was no work for him as conductor, he was head brakeman when injured. He had made the trip over this line, passing the place where the injury occurred, 64 times somewhere near sundown and 64 times between 10 p. m. and midnight. There had been no recent rains.

He testified that he was always busy with his duties when passing, took no particular notice of the condition of the hill, knew there were rocks on it, but did not know they were loose; that no rock had ever been on the track at any of the trips made by him; that he supposed he had received a copy of the time-table but had never been instructed to read it, though the rules so required; and that he had read parts of it. That he knew if the tender came in contact with some obstruction on the track, it would put him in a dangerous position, but he had been over the track some twenty or thirty minutes previously and did not appreciate the possibility or liability of danger by a collision with rock and, had the tender collided with a cow, the footboard would not have been knocked off.

The statement in the time-table relative to loose dirt and rock and dirt and rock slides was on page 7, and there is no testimony that appellee had read such statement or knew its contents. The failure to read such statement did not constitute negligence as a matter of law, but was an issue of fact determined in his favor by the jury, since he was acquitted of contributory negligence. Texas & P. Ry. Co. v. Short (Tex. Civ. App.) 62 S.W.(2d) 995.

There is no testimony that either rock or dirt had previously fallen from the hill; none that appellee had any experience with or observation of such slides or the probabilities thereof, except such as is imputed to him by common knowledge.

The law is settled in this state that: "If, discarding all adverse evidence and giving credit to all evidence favorable to the plaintiff and indulging every legitimate conclusion favorable to the plaintiff which might have been drawn from the facts proved, a jury might have found in favor of plaintiff," the...