Detro v. Gulf, C. & S. F. R. Co.

• Decision Date: 23 March 1916
• Docket Number: (No. 70.)
• Citation: 188 S.W. 517
• Parties: DETRO v. GULF, C. & S. F. R. CO.
• Court: Texas Court of Appeals

188 S.W. 517

DETRO v. GULF, C. & S. F. R. CO.

(No. 70.)

Court of Civil Appeals of Texas. Beaumont.

March 23, 1916.

Rehearing Denied October 5, 1916.

Appeal from District Court, Montgomery County; L. B. Hightower, Judge.

Suit by C. L. Detro against the Gulf, Colorado & Santa Fé Railroad Company. From a judgment for defendant, plaintiff appeals. Reversed and remanded.

C. W. Nugent, of Houston, and C. A. Toler, of Conroe, for appellant. F. J. & C. T. Duff, of Beaumont, and W. N. Foster, of Conroe, for appellee.

MIDDLEBROOK, J.

This suit was filed in the district court of Montgomery county Tex., by the appellant, C. L. Detro, against the appellee, the Gulf, Colorado & Santa Fé Railway Company, for damages for injuries received while an employé of the appellee, riding on one of the engines of the appellee, with the authority and permission of the appellee, and in the discharge of the general duties of appellant, he alleging that his injuries were caused by being struck on the head by a timber or some other hard substance suspended from the top or fastened to the side of appellee's bridge over Trinity river, alleging that said timber or hard substance had been negligently and carelessly left in its position by the agents, servants, and employés of appellee railway company, and that as a result of said negligence, without fault on appellant's part, appellant was seriously and permanently injured.

Appellee answered by general demurrer and general denial, and further that settlement had been had with appellant, also that if the appellant was injured in the way and manner claimed, that the injuries were the result of his own negligence in the way and manner in which he was riding upon the engine at the time, in that he was leaning out of the same, and was guilty of contributory negligence, which was the cause of his injury.

Said cause was tried before a jury up to the conclusion of all of the testimony, at which time the court peremptorily instructed the jury to return a verdict for defendant, which was accordingly done. Motion for new trial was seasonably filed, by appellant, and was by the court overruled, and the cause is now before this court for revision.

The undisputed facts show appellant to have been on the engine of the defendant company at the time he was injured, by special permit of the company. He was division lineman for the defendant company, and it was his duty to keep up the company's telegraph wires from Beaumont to Somerville, and he was permitted to ride on the company's engine, because he could better view the telegraph wires from the engine cab, and could also communicate with the engineer readily if it became necessary for him to stop and get off to repair the telegraph wires. He was injured very seriously by something striking him in the forehead while the train was passing over Trinity river bridge, his skull being crushed in, and he was knocked back on the deck between the engine cab and the tender. He was in the performance of his duty as such lineman when he was injured.

Appellant's first and second assignments of error complain of the action of the trial court in peremptorily instructing a verdict for the defendant, asserting that the evidence was sufficient to raise the issue of negligence on the part of appellee; and, such being true, it was for the jury to determine whether the railroad company was negligent.

Article 1, § 15, of our Constitution provides that the right of trial by jury shall remain inviolate. Our Supreme Court and our Courts of Civil Appeals have continuously held that it is the province of the jury to determine questions of fact. Choate v. Railway Co., 91 Tex. 409, 44 S. W. 69; Thomas v. Morrison, 92 Tex. 333, 48 S. W. 501; Burgess v. Western Union Telegraph Co., 92 Tex. 125, 46 S. W. 795, 71 Am. St. Rep. 833.

Mr. Greenleaf, in his work on Evidence, says:

"Whether there be any evidence or not is a question for the judge; whether it is sufficient evidence is for the jury."

We quote so much of the testimony as is pertinent to this issue.

The plaintiff testified:

"I had to keep the lines and everything in repair and was subject to call at any time of the day or night to do same. I carried a pass on freight trains, engines, and all, and on all trains. I mean locomotives. I was supposed to go any time of any day, regardless of weather, whether on passing trains, freight trains, freight engines, or passenger engines; anything that run. I had been engaged in those duties for the Santa Fé Railroad Company during the year 1909, and on June 6, 1909. I came here on the 22d of March, 1908, and had been there over a year, and my duties had been the same. * * * I saw that bridge, had occasion to be there a short time before my injury, and I say I was there just a day or so before. We had a tree down on the line in this edge of the bridge, right at the bottom on a trestle. I was down there an evening or so before. There was work going on at that bridge at that time. They were painting the bridge at the time. A crew was painting the bridge. I had been over there on a car a day or so before and waved at them as I went through. Their car was at the river on the side track. It was the Gulf, Colorado & Santa Fé Railroad Company's car. There were men working for the Santa Fé Railroad * * * painting the bridge. * * * They used a swinging scaffold with ropes which was on the inside of the bridge in painting it. This scaffold was swung with ropes from the top of the bridge up and down from the top of the bridge; up and down pieces get to them, the same as painting the side of a house, and swung with ropes for them to sit on there or stand up. They would lower it or raise it up and down, just the same as painting on the side of a house. You ask me if I know how they had been disposing of the scaffolds before that for passing trains, and I say when I was there they had them laying on the bridge, taken the boards out of them, had the boards hanging up on the bridge. Those scaffolds were made out of about 2×12 big heavy plank, so they would hold them up in walking across them. They were hanging lengthwise of the bridge. I have had occasion to notice their disposition of those scaffolds, and so on, and what they would do with them when trains would be passing. Sometimes they would tie them back and lower them. Up to the time of my injury I had not known of their passenger trains in any way hurting anybody. I had no apprehension of their passenger trains hurting me in passing through there. That was the least of my thoughts. [Here written permit was identified by the witness Detro, and which is not questioned by defendant, permitting Detro to ride upon the locomotives and engines of the company.] I can remember of the approach of the Trinity river bridge on that afternoon I was hurt. When I left Cleveland I got up in the engine cab behind the engineer, and I talked with him, joked with him and laughed along. When we got down near the river, I got down and stood in the gangway to watch my line where that tree was down, and I was standing there leaning against the side of the cab watching my line. In doing that I was in the performance of my duty. I got down from behind the engineer for that purpose to look at my work, because it was dark when I finished it, and I wanted to see what kind of a job I had done. I wanted to see if I had any more to do to it, and was standing there came up * * * to where the overhead part of the bridge. I was looking down that way, glancing down, when I came to the iron part of the bridge; I looked down the river to see what — [Here witness was interrupted by this question: Q. Right there, do you recollect of passing within the bridge? A. That is what I saw, the up and down part of it; just the up and down part.]

"The approach to the bridge is sloping. * * * The span is what we call double cross iron, and of course you look in the end through that very well. When we passed that end of the span or came to it I did not care any more about my work as I had done watched my wires. When I came to the up and down part of the bridge I had passed my trouble. I knew where the trouble was as I saw it when passing and just as I looked down to the river to see what was on the river to look, and that is the last I remember. That is as far as I can remember. The next thing I remember about anything after that was I remember I came to and looked around and I saw some little white cots around me, and people lying around. * * * I don't know what I did then, as I did not know any more for awhile. When I first came to and when I first got a gleam of consciousness, I know I was in the hospital at Temple. That was what is known as the Santa Fé hospital. * * * As to telling this jury as to what happened to me when I say I turned my head to look out on the river on that bridge, I say I hit something; my head hit something. This happened on June 6, 1909. * * * I don't know as a matter of fact, nor can I remember or tell this jury how long I was in the hospital. I can tell them what I heard but I don't know how long I was in there. * * * I don't know how long those intervals of consciousness continued from time to time. I know I would keep wanting to go home all the time, but I don't know how long that was. They would not let me get up for a long time, it seemed to me like. * * * I don't know nothing at all about the way this injury happened. I remember up to the time I got on the bridge and watching my line. When I got to the up and down part of the bridge I looked at the river, and that is all I remember. I had been to the bridge many times, and thoroughly acquainted with its location. It was a day or so before I had been hurt that I saw them painting this bridge, and saw this scaffold. I don't know whether it was a day or two days. Yes, sir; it was before the injury. It was a day or so before the injury; I was down there; and came back. According to my recollection, it...