Chicago, R. I. & G. Ry. Co. v. Trout
| Decision Date | 16 June 1920 |
| Docket Number | (No. 1686.) |
| Parties | CHICAGO, R. I. & G. RY. CO. v. TROUT. |
| Court | Texas Court of Appeals |
Appeal from District Court, Potter County; Henry S. Bishop, Judge.
Action by H. P. Trout against the Chicago, Rock Island & Gulf Railway Company and another. Judgment for plaintiff against the named defendant, and that defendant appeals. Affirmed.
N. H. Lassiter, of Ft. Worth, and C. E. Gustavus, of Amarillo, for appellant.
W. H. Childers, C. B. Reeder, and L. C. Barrett, all of Amarillo, for appellee.
This is the second appeal of this case. See Chicago, Rock Island & Gulf Railway Co. v. Trout, 152 S. W. 1137; Id., 206 S. W. 829; Id., 208 S. W. 656.
H. P. Trout sued the Chicago, Rock Island & Gulf Railway Company and the Chicago, Rock Island & El Paso Railway Company, in the district court of Potter county, for damages, alleged to have resulted from an injury sustained by him in the territory of New Mexico, in 1910. It was alleged that the defendants were at said time part of the Rock Island System of Railroads, and were operating a line of railroad from Amarillo, Tex., to Tucumcari, N. M., as partners; that the part of the road in New Mexico was operated in the name of the Chicago, Rock Island & El Paso Railway Company, and that part in Texas was operated in the name of the Chicago, Rock Island & Gulf Railway Company; that at the time of the injury plaintiff was in the employ of the defendants; that he was employed in Texas by the Chicago, Rock Island & Gulf Railway Company, and while working under said employment was sent by said company across the line into New Mexico, and put to work on the said road, operated at said time either by the Tucumcari & Memphis Railway Company or the Chicago, Rock Island & El Paso Railway Company; that plaintiff had no knowledge as to any change of masters in the change of the location of his work from Texas to New Mexico, but throughout his services was working under his employment by the Chicago, Rock Island & Gulf Railway Company; that while engaged in the work which he was set to do he was riding on a car in a train operated on said line of railway in New Mexico; that in front of said car in said train was another car, loaded with telegraph poles; that one of said poles fell from its place on said car, and was caused to swing around so that it struck the plaintiff and knocked him off the train, causing the injury, for which he sued. It was expressly alleged that the suit was brought under the federal Employers' Liability Act of April 22, 1908 (U. S. Comp. St. §§ 8657-8665). The defendant denied the allegations of partnership, and specially pleaded that plaintiff was not at the time of the injury in their employ; that the said line of road in New Mexico at the date of the injury was owned and controlled by the Tucumcari & Memphis Railroad Company, and plaintiff was in the service of said company, in doing the work at the time and place of his injury; that said line of road was then in course of construction, and plaintiff, with others, was sent out on the train to load onto the cars some telegraph poles, which were scattered along said line, and that he was injured while engaged in such work. The defendants also pleaded assumed risk, contributory negligence, and, further, that if there was any negligence from which the injury resulted, such negligence was the act of a fellow servant, and that under the laws of the territory of New Mexico, which were specially pleaded, the defendants would not be liable for injuries resulting from the negligence of such fellow servant.
A peremptory instruction was given for the Chicago, Rock Island & El Paso Railway Company. The case was submitted on special issues, and the jury found in response thereto that the Chicago, Rock Island & Gulf Railway Company employed the plaintiff in Texas, and sent him to work at the place where he received the injury; that he was at such time working under a contract of employment with the said Chicago, Rock Island & Gulf Railway Company; that the company having charge thereof was guilty of negligence in the manner of loading the poles and moving the car in question at the time of the injury; that the plaintiff was not guilty of contributory negligence; his damages were assessed at the sum of $5,500. Judgment was entered for the plaintiff for the sum against the said Chicago, Rock Island & Gulf Railway Company, and the appeal is from this judgment.
The evidence shows that the injury occurred about the time of the completion of the extension of the lines of the Rock Island System from Amarillo to Tucumcari. That part of the road in Texas was owned and was being constructed by the appellant, the Chicago, Rock Island & Gulf Railway Company; that part of the road in New Mexico was owned and being constructed by the Tucumcari & Memphis Railway Company, and was conveyed by said company to the Chicago, Rock Island & El Paso Railway Company on May 9, 1910, three days after plaintiff's injury. J. M. Stark had charge of the construction of the road both in Texas and New Mexico, and used the men employed interchangeably, account for work done in New Mexico being charged against the Tucumcari & Memphis Railway Company, and that for work done in Texas against the Chicago, Rock Island & Gulf Railway Company. Plaintiff was employed by one Pancost, a foreman working under Stark. He was employed in Texas, and worked on the road for several days in Texas, and the evidence is sufficient to warrant the conclusion that he was employed by the Chicago, Rock Island & Gulf Railway Company, and that was the understanding between him and the foreman employing him. The gang of men under this foreman were moved once in Texas after plaintiff was employed, and a few days late Pancost and the men working under him, including plaintiff, were moved to New Mexico. Plaintiff throughout his employment was working under Pancost as foreman, and doing the same character of work. The work trains ran across the line between Texas and New Mexico, without any change of employés, and the entire work was being done as one piece of work. On the day of the injury a work train took on board Pancost and his men, including plaintiff, and started along the road, gathering up telegraph poles, which were scattered along said road at distances of about 150 yards apart. Pancost and his men were loading the poles under the general superintendence of another man, who had charge of the construction of the telegraph line. The poles were loaded on a flat car, being held on by standards on the sides. The standards, on the side of the car opposite from which they were being loaded were about 5 feet high, but those on the side from which the poles were loaded were from one to 2½ feet high, these short standards being used so that the men could lift the poles from the ground over them. As they were loaded they were piled up against the high standards, and sloped down to the lower standards. Long standards were provided, so that when loading should be complete they would replace the short standards, and the poles distributed evenly on the car. After loading a pole the men would get on the cars, and would ride to the next pole to be loaded, and so on. In doing this work plaintiff was riding on the car behind the car being loaded. After they had loaded all the poles except one or two that were about a mile or two distant, the train was proceeding to such place for the purpose of loading these remaining poles. After the train had traveled some half mile and had attained a speed of from 15 to 35 miles per hour, according to the testimony of different witnesses, one of the poles rolled off the car over the short standards, and one end, striking the ground, was swung around so as to strike the plaintiff, knocking him off the car and injuring him, as more fully stated later.
The first assignment complains of the admission of testimony of the witness J. B. Smith, who testified that he was present at the time of the injury and that the pole swung around and knocked the plaintiff off the car, "injuring him very badly," objection being to the statement just quoted. We do not think there is any reversible...
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