Fort Worth & D. C. Ry. Co. v. Smithers

• Decision Date: 06 December 1922
• Docket Number: (No. 1997.)<SMALL><SUP>*</SUP></SMALL&gt
• Citation: 249 S.W. 286
• Parties: FORT WORTH & D. C. RY. CO. et al. v. SMITHERS.
• Court: Texas Court of Appeals

Page 286

249 S.W. 286

FORT WORTH & D. C. RY. CO. et al. v. SMITHERS.

(No. 1997.)^*

Court of Civil Appeals of Texas. Amarillo.

December 6, 1922.

On Rehearing, February 14, 1923.

Further Rehearing Denied March 7, 1923.

Appeal from District Court, Dallam County; Reese Tatum, Judge.

Action by Glen Smithers against the Fort Worth & Denver City Railway Company and another. Judgment for plaintiff, and defendants appeal. Reversed and rendered.

See, also, 228 S. W. 637.

E. E. Whitted, of Denver, Colo., Tatum & Strong, of Dalhart, Turner & Dooley, of Amarillo, and Thompson, Barwise, Wharton & Hiner, of Fort Worth, for appellants.

Bailey & Richards, of Dalhart, Joseph Gill, of Clayton, N. M., and Barrett & Works, of Amarillo, for appellee.

HALL, J.

The appellee, Smithers sued the Fort Worth & Denver City Railway Company and the Colorado & Southern Railway Company to recover damages for personal injuries alleged to have been sustained by him while in the employ of the appellants at Texline as a hostler helper. The suit was instituted and tried under the federal Employers' Liability Act (Comp. St. §§ 8657-8665) and the Safety Appliance Act (Comp. St. § 8605 et seq.) and amendments thereto. Appellee alleges that the appellants were engaged in interstate commerce, and on April 24, 1917, the date of his injuries, he was in the general employment of the Forth Worth & Denver City Railway Company and in the special employment of the Colorado & Southern Railway Company; that his duties as hostler helper required him to build fires in locomotives and steam them up, to take charge of them when coming into the yards and roundhouse for repair, storage, and other purposes, to extinguish the fires therein, empty and clean the fire boxes and ash pans, and to prepare such locomotives generally for service; that on said date an engine engaged in interstate commerce came out of New Mexico to Texline, and was spotted at a point near the company's turntable in said town about 9 o'clock that night; that after the engine was spotted he went from the roundhouse with the hostler and another hostler helper for the purpose of extinguishing the fire, cleaning the fire box, emptying the ash pan, and working on and about the engine; that the ash pan in question was a large metal pan, built under the fire box, for the purpose of receiving ashes, cinders, and clinkers emptied from the fire box and was built with a view of being dumped, emptied, and cleaned by use of a lever extending up through the floor into the engine cab; that when the pan and lever were in ordinary state of repair the pan could be emptied by using the lever while in the cab and without the necessity of getting down and going under the engine or any part thereof; that when he went to the engine he climbed up into the cab, took hold of the lever, and made various attempts, after having opened the ash pan, to close it, and that the lever failed to work and operate and failed to close the pan; that he undertook to get down out of the cab, intending to go under the engine for the purpose of closing the pan, and in doing so turned around with his face toward the engine and looked into the cab of the engine, and when he started to alight while in such position his foot slipped, and he fell into the turntable pit, a distance of approximately 11 feet.

The specific grounds of negligence alleged are as follows: (a) The premises around and about the engine at the time and place in question were not lighted; (b) that the ash pan would not close without the necessity of appellee going under the engine in violation of the Safety Appliance Law, to wit, the federal Ash Pan Law; (c) that the engine he was working upon was moved on to the turntable by the hostler without his knowledge; (d) that the engineer and fireman who brought the engine into Texline, according to custom, had theretofore eaten their meals on the engine, and after eating had turned the water hose upon their dishes, washing the grease off of them onto the deck of the engine, and there was grease and greasy water on the deck and floor of the engine cab upon which he slipped. The specific injuries are set out, some of which he alleges resulted in partial paralysis, rendering him almost helpless in earning a living; that such injuries were permanent. His damages are fixed at the sum of $35,000.

The appellants answered by general demurrer, one special exception, general denial, and specially denied that they were guilty of negligence as charged. They pleaded assumed risk and contributory negligence with great particularity in several paragraphs; denied that any of the matters complained of were the proximate cause of the appellee's injuries.

By first supplemental petition appellee alleged that he did not know that the engine deck was covered with grease or greasy water; denied that he knew the dangers resulting from the premises and the engine not being lighted; alleged that he did not know the engine had been moved on to the turntable; that he was young and inexperienced in railroad work and not acquainted with the dangers incident thereto. He denied that he was simulating or faking in any of his alleged injuries.

In answer to special issues the jury found as follows: (1) That the engine in question was not equipped with an ash pan that would empty and close without the necessity of plaintiff going under or partially under the engine to operate it; (2) that it was necessary for plaintiff, in the discharge of his duties, to take a position on the ground under or partly under the engine to close the ash pan; (3) that in the discharge of his duties on the occasion in question the plaintiff started to get down out of the cab of the engine to close the pan from the ground; (4) that the failure to have an ash pan which would empty and close without the necessity of plaintiff's going under the engine to operate it contributed approximately to the plaintiff's injuries; (5) that plaintiff fell from the engine cab into the turntable pit; (6) there was grease and water on the deck of the engine at the time plaintiff undertook to go down out of the cab; (7) plaintiff did not know at the time he went up into the cab that there was grease and water on the deck; (8) that he did know of the dangers arising from said grease and water on the deck of the engine; (9) that a person of ordinary prudence, in the discharge of plaintiff's duties at that time, would have necessarily learned of the grease and water being on the deck of the engine; (10) that a person of ordinary prudence would have necessarily learned of the dangers arising in the discharge of plaintiff's duties from such grease and water; (11) plaintiff slipped on the grease and water and fell from the engine in attempting to get down from the cab; (12) plaintiff was unable to close the ash pan by the use of the lever in the engine cab before attempting to get down; (13) the failure of the ash pan to close by the use of the lever from the cab was a contributing proximate cause of plaintiff's injuries; (14) the defendants were negligent in permitting grease and water to be on the deck; (15) that the negligence of defendants in permitting such grease and water to be on the deck was a proximate cause of plaintiff's injuries; (16) that plaintiff has been injured in the way and manner alleged in his petition; (17) that plaintiff's injuries are the proximate result of his falling out of the cab into the turntable; (18) that plaintiff has been damaged by reason of said injuries; (19) that he had been damaged in the sum of $23,000; (20) that plaintiff was guilty of contributory negligence on the occasion in question; (21) that plaintiff's damages have been diminished $9,800 by reason of his contributory negligence.

The court refused to direct a verdict for the defendants, and at their request specially instructed the jury not to take into consideration any injuries which plaintiff pretended to have, but did not really suffer. Findings on special issues submitted upon defendant's request are as follows:

(1) That slipping on the grease and water caused the plaintiff to fall.

(2) The plaintiff was not guilty of negligence, as that term is defined in the court's main charge, in working at the time and place, knowing that there was grease, or greasy water, on the apron.

(4) It was not plaintiff's duty to clean the grease or water off the apron of the cab.

(7) Failure of the ash pan lever to operate from the engine cab and slipping on the grease and water on the deck of the engine were the proximate causes of plaintiff's falling from the engine.

(13) Plaintiff's slipping on the grease was not the sole proximate cause of his injuries.

(18) The ash pan was not so equipped that it could be closed by a man standing on the ground without danger of being injured by any movement of the engine while attempting to close it.

This case has heretofore been before this court (228 S. W. 637), and upon the former trial the controversy was presented to the jury upon a general charge. The issues as made by the evidence and as submitted to the jury in several material points differ from those before us upon this appeal. The only two grounds of negligence submitted and considered upon this trial are the alleged violation of the Ash Pan Law and the negligence of the appellants in permitting grease and greasy water to accumulate upon the apron or deck of the cab. The appellee alleges that the violation of the Ash Pan Law contributed directly and proximately to his injuries.

The first question therefore to be considered is: Are the appellants guilty as charged with violation of the Ash Pan Law in the equipment of the particular engine? The provisions of the Ash Pan Law, as found in U. S. Stat. at Large, vol. 35, pt. 1, p. 476, c. 225 (U. S. Compiled Statutes, §§ 8624-8629) are:

"Sec. 1. That on and after the first day of January, nineteen hundred and ten, it shall be unlawful for any common carrier...