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

• Decision Date: 09 July 1941
• Docket Number: No. 2364-7639.,2364-7639.
• Citation: 154 S.W.2d 453
• Parties: CLAYTON v. CHICAGO, R. I. & G. RY. CO. et al.
• Court: Texas Supreme Court

Page 453

154 S.W.2d 453

CLAYTON v. CHICAGO, R. I. & G. RY. CO. et al.

No. 2364-7639.

Commission of Appeals of Texas, Section A.

July 9, 1941.

Error to Court of Civil Appeals of Second Supreme Judicial District.

Action by Ocie L. Clayton against the Chicago, Rock Island & Gulf Railway Company and others to recover for injuries sustained by the plaintiff while an employee of the named defendant. From a judgment in favor of the defendants, the plaintiff appealed to the Court of Civil Appeals. To review the judgment of the Court of Civil Appeals, 129 S.W.2d 693, affirming the trial court's judgment, the plaintiff brings error.

Judgment affirmed.

L. D. Eakman, of Montague, and T. B. Coffield, of Bowie, for plaintiff in error.

Benson & Benson, of Bowie, and Jenkins Garrett, Walker, Smith & Shannon, and F. B. Walker, all of Fort Worth, for defendant in error.

GERMAN, Commissioner.

While Ocie Clayton was working as a sectionhand on a railroad, using a crowbar to pull spikes from the cross-ties, the bar, because of its defective condition, slipped and severely bruised the index finger on his left hand. He sued the railway company for damages. The trial court held that the plaintiff assumed the risk incident to his injury, and instructed a verdict for the defendant. The judgment was affirmed by the Court of Civil Appeals. 129 S.W.2d 693.

The material facts are shown by plaintiff's own testimony, and are without any substantial dispute. The substance of his testimony, when reduced to a narrative form, is:

"I am 20 years old. I was employed by the Chicago, Rock Island & Gulf Railway Company on October 23, 1938, as a laborer. I had been for several years prior to that time earning my living as a common laborer. I had never worked on a railroad before. When I went to work I was knocking rocks from under the rails with a foot adz. I had been working for the railroad company about ten days prior to that date. I had been working about two hours the day that I was injured. They were getting behind pulling spikes, and I was told by the straw boss to quit knocking rocks from under the rails and to begin pulling spikes. You pull spikes with a crowbar. A crowbar is about six feet long, one and one-half inches in diameter, and has a fork at the end like a claw hammer to set under the head of the spike when you pull spikes. I got a crowbar off the work car that had been placed there for the workmen. I didn't examine the crowbar when I picked it up. I was in a hurry. The boss was hurrying us. After they called me from knocking rocks from under the rails, I went to pull spikes, and I had pulled about a rail; about the length of a rail, and I came to a spike that the bar wouldn't pull; I couldn't get it under it to hold and the straw boss drove the bar under the spike and we couldn't pull it and he told me to go on down the line, and I pulled the next two or three, and then I came to one and the bar slipped off and I mashed my finger. The assistant foreman tried to drive the bar under the head with a maul, but couldn't make it take hold and told me to go on and he would get another bar to pull that spike. I went on down the line pulling spikes. I had pulled two or three more when I got hurt. I was trying to pull another spike. The bar first caught on the spike where I got hurt. I was working with both hands. I am left-handed, and I throwed my weight on the...