Colorado & S. Ry. Co. v. Rowe

• Decision Date: 30 June 1920
• Docket Number: (No. 1688.)
• Citation: Colorado & S. Ry. Co. v. Rowe, 224 S.W. 928 (Tex. App. 1920)
• Parties: COLORADO & S. RY. CO. v. ROWE.
• Court: Texas Court of Appeals

224 S.W. 928

COLORADO & S. RY. CO. v. ROWE.

(No. 1688.)

Court of Civil Appeals of Texas. Amarillo.

June 30, 1920.

On Motion for Rehearing and for Additional Findings, October 27, 1920.

COPYRIGHT MATERIAL OMITTED

Appeal from District Court, Potter County; Henry S. Bishop, Judge.

Suit by Ada Rowe against the Colorado & Southern Railway Company and the Ft. Worth & Denver City Railway Company. From judgment for plaintiff against it, the defendant first named appeals. Affirmed.

See, also, 205 S. W. 731.

E. E. Whitted, of Denver, Colo., Thompson, Barwise, Wharton & Hiner, of Ft. Worth, and Turner & Dooley, of Amarillo, for appellant.

Barrett & Childers and Reeder & Reeder, all of Amarillo, for appellee.

BOYCE, J.

Appellee, as administratrix, and for the benefit of herself and two minor children, brought this suit against the Colorado & Southern Railway Company and the Ft. Worth & Denver City Railway Company, to recover damages under the federal Employers' Liability Act (U. S. Comp. St. §§ 8657-8665) for the death of her husband, Edgar Rowe. The said railway companies were sued as partners, but there was a peremptory instruction for the Ft. Worth & Denver City Railway Company; and, as no question arises in connection with its elimination from the case, we need refer no further to the allegations that attempted to make it liable with the appellant company. The plaintiff alleged in her petition that on June 15, 1916, the said Edgar Rowe was in the employ of the appellant company as brakeman on a freight train running from Trinidad, Colo., to Texline, Tex.; that while said train was traveling at a rapid rate of speed one of the bottom doors of one of the cars in the train dropped open and dumped a large amount of coal on the track under the cars; that the said Rowe was at the time engaged in his duties on the train on one of the cars near said coal car, and was caused to fall from the train, and was run over and killed; that no one saw the said Rowe at the exact moment, so that plaintiff cannot set out the exact manner in which he was killed, but alleges that the falling of the coal on the track caused the air hose of the train to uncouple, setting the brakes suddenly and unexpectedly, and so jarred and shook the train that it contributed to and was one of the causes of the said Edgar Rowe's fall; that said coal falling from said car bounced and struck the said Edgar Rowe, which also contributed to his fall; that the cars were jolted by running over said coal on said track, and this fact contributed to cause said Rowe to fall from said car; that a great dust was caused to arise from the coal falling on the track, which blinded and choked the said Rowe, and also contributed to his said fall; "that each and everything herein alleged was the proximate cause of his said fall, and that all, taken together, was the proximate cause of said fall and said killing;" that the door of said car was insecurely fastened, and that it was negligence on the part of the defendant to use said car and transport the same in a train in such condition. Defendant answered by exceptions, general denial, and pleas of assumed risk, and contributory negligence.

It is undisputed that the said Rowe met his death about 10:45 p. m. June 15, 1916, by being run over, as alleged, by a train operated by the appellant, on which he was brakeman. The train was proceeding south between Des Moines and Clayton, N. M., at the time. There was a heavy grade to descend between said places, and it was customary before this grade was reached to turn up what was described as the air retainers on a certain number of cars, the purpose of this being to assist in the operation of the air brakes and in the control of the train while descending such grade. On this occasion Rowe had been instructed to turn up a certain number of retainers on the cars of the train, and, as appears from our further statement, had evidently set about this task. While the train was proceeding at the rate of about 20 miles per hour all brakes were suddenly and automatically set, and the train stopped within a few car lengths. The train crew on investigation found that one of the doors in the bottom of a coal car, described as being El Paso & Southwestern coal car No. 7422, had dropped down and dumped about four tons of coal across the east rail of the track. Rowe's dead body was found under the train near where the coal had been dumped. He was badly mutilated and his face was black with coal dust. His lantern was found burning, setting upright on the coal in the southwestern corner of a coal car described as an Erie car, being the car in the train just behind said El Paso & Southwestern car which dumped the coal. The air retainer on this Erie car was either on the side or end of the car near the southwest corner, there being some conflict as to its exact location. This retainer had been turned up. There is some conflict in the evidence as to whether one could conveniently and safely turn this retainer up from the top of the loaded car. There was a platform about one foot wide in front of the car, and one could stand on this and reach the retainer from it. The air retainer on the El Paso & Southwestern car had not been turned up, but the retainers on several cars behind the Erie car had been turned up. The air hose between the Erie and El Paso & Southwestern cars was uncoupled, and it was the uncoupling of this air hose that set the brakes automatically. The coupling proper between the two cars was properly engaged. The El Paso & Southwestern car was provided with doors in the bottom of the car so that its contents could be dumped. This dumping process was controlled by a shaft, operated by a crank, from which shaft 5/8-inch chains extended to the doors. When these chains were wound up by the shaft they closed the doors, and when the chains were unwound the doors dropped down. There is evidence sufficient to support the conclusion that the chains to the northeast and northwest doors of this car were hanging loose from the shaft, unwound and disconnected from the doors; that the northwest door was fastened up by a baling wire, and a broken baling wire was found on the northeast door, the one that had dumped. The evidence also shows that it would not be a proper or secure manner of fastening such door to tie it up with a baling wire. The train crew gave it as their opinion that the train had been uncoupled between the Erie and the El Paso & Southwestern car and had recoupled by impact, and that the uncoupling of the air hose was the result of the uncoupling of the train.

Considerable testimony was offered as to the possibility of the air hose becoming uncoupled without uncoupling of the train. It was the general opinion of the train crew that this would not occur. It was shown that the air hose hung down at the coupling, and that it could be uncoupled by raising the hose up at the coupling or that it could be pulled apart. It is the theory of these witnesses that the sand board between the brakes, which is only from 7 to 10 inches above the roadbed, would so level off the coal that was dumped that it could not reach the coupling of the hose so as to affect it. We are not prepared to say, however, that the evidence excludes the probability of the air hose being uncoupled under the circumstances without the uncoupling of the train itself. It occurs to us that the effect of the wheels of the car several feet in front of the air hose, running over an obstruction on the track, would certainly have a tendency to whip or throw up the air hose hanging down near the end of the car, and that the train might be uncoupled in this way. The evidence shows that the train could be uncoupled by raising the coupler on one of the cars about 9 inches, as this would lift one coupler out of engagement with the other, and this, of course, could be the result of the wheels nearest the coupler running over something and being raised to a sufficient height to have this effect. However, the evidence shows that if the cars were uncoupled in this way, the coupling pin would be left in place, and it would be impossible for the cars to couple by impact. So this seems to exclude the conclusion that the train was uncoupled in such manner; it not being shown that the coupling pin could be jolted up so as to release the coupling. The coupling pins were controlled by a device known as the pin lifter. The pin lifter on the Erie car was fastened to the front face of the little platform already referred to, and stood out several inches from the platform, and was several inches below the top of it. The device was made to lift the pin and open the coupler. When the coupler is opened by using the pin lifter the pin is left in such position that coupling will be made automatically on impact. There was a point about midway between the coupling and the side of the car at which the pin lifter could be caused to operate by downward pressure and it was the theory of the trainmen that Rowe had fallen or stepped on the pin lifter at such place and in this way uncoupled the cars; that the air hose was thus pulled apart at their coupling, and the train recoupled by impact on the two sections coming together.

The jury found, in response to special issues submitted, that the El Paso & Southwestern coal car was not in a reasonably safe condition for transportation in the train at the time of the injury; that the furnishing of said car by the said defendant in such condition was negligence, and was the proximate cause of the injury and death of Edgar Rowe; that the said Edgar Rowe was not guilty of contributory negligence, and that he did not assume the risk of the injuries sustained. Damages were assessed at the sum of $15,000 and apportioned between the plaintiff and two children.

It is first suggested that there is fundamental error in the refusal of the court to give appellant's requested peremptory instruction. This suggestion...