Crawford v. Houston & T. C. R. Co.

• Decision Date: 23 December 1895
• Parties: CRAWFORD v. HOUSTON & T. C. R. CO.
• Court: Texas Supreme Court

Page 534

33 S.W. 534

CRAWFORD v. HOUSTON & T. C. R. CO.

Supreme Court of Texas.

December 23, 1895.

Error to court of civil appeals of First supreme judicial district.

Action by G. Duke Crawford against the Houston & Texas Central Railroad Company for personal injuries. From a reversal by the court of civil appeals (32 S. W. 155) of a judgment for plaintiff, the latter brings error. Affirmed.

F. F. Chew, Sr., and W. G. Love, for plaintiff in error. Baker, Botts, Baker & Lovett, and Frank Andrews, for defendant in error.

BROWN, J.

Plaintiff in error sued Charles Dillingham, as receiver of the Houston & Texas Central Railroad Company, to recover damages for personal injuries received while he was in the employ of said Dillingham as receiver. Dillingham had been appointed receiver for the said railroad company's property by the circuit court of the United States, which property, under the orders of said court, was sold, and finally became the property of the defendant in error, which was made a party to the suit after Dillingham's discharge by the United States court. It is unnecessary in this case to set out the facts connected with the receivership and the transfer of the property to the defendant in error.

The plaintiff in error, in his petition, charged as grounds for his recovery two acts of negligence on the part of the receiver,— that is: That the receiver negligently furnished round coupling pins, instead of flat pins, which were safer, and that, by reason of the character of the pin, it became fastened in the holes in the drawhead, so that it could not be removed by the plaintiff, and thereby caused his injury. (2) That one Harry Smith was foreman of the crew to which plaintiff belonged, and negligently absented himself from the engine, on which account plaintiff failed to receive the notice of danger, which he otherwise would have received, in time to have prevented the injury, and that from that cause he received his injury. The defendant, among other things, pleaded that the plaintiff was guilty of contributory negligence, setting out the negligence specifically. From the findings of the court of civil appeals, which are not controverted, but in the application admitted to be correct, we make the following statement of fact applicable to the question to be determined: Crawford was a switchman in the yards of the Houston & Texas Central Railway Company at Houston, Tex., and had been so engaged at that place for about two years. He was familiar with the yard and the switches therein. He belonged to a crew consisting of the foreman, Harry Smith, and two others besides himself, whose duty it was to switch the cars in the yard when required. He did not habitually uncouple and couple cars, but it was his duty to do so when occasion required, and he had frequently performed that service. On the occasion when he received his injury, he was at work in the yard at night. The foreman, Smith, put the plaintiff in charge of the engine, and directed him to uncouple and switch certain cars standing upon the track. It was dark, and he had a lantern, which he carried with him on such occasions. Plaintiff first threw the switch, and then went to the cars to be switched, and undertook to uncouple them by withdrawing the coupling pin from the drawhead. These cars were situated about 40 feet from the switch which he had just thrown. He found the pin fast in the drawhead, so that he could not remove it, whereupon he stepped out from between them, and signaled to the engineer to back up, in order to loosen the pin. When the engineer backed the cars up, plaintiff again stepped in between the cars, and undertook to withdraw the pin. It was somewhat loose, but still hard to remove, and he continued working at it, thinking that he could pull it out, all the time walking between the cars, and between the rails of the track, in the direction of the swith. Plaintiff knew when the cars began to move he was about 40 feet from the switch, and that he was going in the direction of it; but, under the impression that he would be able to remove the pin, and get out from between the cars, before reaching the switch, he continued his effort to do so. He finally removed the pin, the cars still being in motion, and attempted to leave the track, and get from between the cars, when one of his feet was caught, and he was run over by the cars, both legs being broken, one of which was afterwards amputated. Plaintiff testified that the foreman generally threw the switches and made the signals, and that, if he had been present, and found that appellee was remaining between the cars an unusual time, he (the foreman) would have given the signal to stop; but he knew on this occasion that the foreman was not present, and that he, himself, had been directed to perform these duties.

Upon this state of facts, the district court, in the trial before a jury, rendered judgment for the plaintiff for $10,000, which, upon appeal, was reversed by the court of civil appeals, and the cause remanded, for the reason that the plaintiff was guilty of contributory negligence, which caused his injury, and was therefore not entitled to recover. The plaintiff applied for a writ of error in this case, upon the ground that the judgment of the court of civil appeals practically settles his case; stating in his petition the facts necessary to bring it within article 1011a, subd. 8, Supp. Rev. Civ. St., as amended by the Twenty-Fourth legislat...