Freeman v. McElroy

• Decision Date: 23 February 1910
• Citation: 126 S.W. 657
• Parties: FREEMAN v. McELROY et al<SMALL><SUP>†</SUP></SMALL>
• Court: Texas Court of Appeals

126 S.W. 657

FREEMAN v. McELROY et al^†

Court of Civil Appeals of Texas.

February 23, 1910.

Rehearing Denied March 30, 1910.

Appeal from District Court, Bexar County; A. W. Seeligson, Judge.

Action by Hannah B. McElroy and others against T. J. Freeman, receiver of the International & Great Northern Railroad Company. From a judgment for plaintiffs, defendant appeals. Affirmed.

King & Morris and Hicks & Hicks, for appellant. H. C. Carter and Perry J. Lewis, for appellees.

JAMES, C. J.

This action is by the widow and two minor daughters, suing by their mother as next friend, for damages resulting to them from the death of Matthew E. McElroy, the husband and father, who was killed by the derailment of a locomotive upon which he was riding whilst in the performance of his duties as appellant's telegraph line repairer. The negligence of appellant which caused the derailment was alleged to consist in having and permitting the track and roadbed to be in a defective and dangerous condition.

Defendant answered by general exception and denial, and also that McElroy was guilty of contributory negligence (1) in riding upon the engine in disobedience of rule No. 9 of defendant, which forbade engineers to allow any person, except officers or trainmen connected with their trains, to ride on their engines without permission from the proper authority; (2) that he was a lineman, whose duty, among other things, was, after being notified of trouble on the telegraph lines along defendant's right of way and informed of the proximate location of same, to find and repair the trouble, and as such he had a right to free passage over defendant's line in the use of defendant's hand cars and velocipedes, and on defendant's passenger trains, for the purpose of locating and repairing the telegraph line for defendant; that it was not necessary for deceased, in the discharge of his duties, to ride upon the engine of defendant's train and especially upon the particular portion of the engine where he was riding at the time of this derailment, and in so doing he unnecessarily and negligently assumed a dangerous position, so that, when said engine was derailed, he was injured, and in this he was guilty of contributory negligence which was the proximate cause of his death. The trial resulted in a verdict for $22,000, apportioned $10,000 to the widow, and $6,000 to each of the daughters.

The first assignment of error is that the court erred in not granting a new trial because the undisputed evidence showed that deceased was guilty of contributory negligence in riding in the gangway of the engine, instead of using his velocipede, or making use of a passenger coach while in the discharge of his duty. Appellant's proposition is that: "Where an employé in the discharge of his duties unnecessarily assumes or places himself in a position of obvious danger and is thereby injured, he is guilty of contributory negligence which will preclude him from a recovery, where his employer has provided a different method by which said duties may be properly discharged with practically no danger to such employé." Appellant in its brief disclaims making the contention that McElroy was a trespasser in being on the engine. In fact, such contention could not be deliberately made after it was shown that he held the written instruction of defendant's division superintendent, addressed to the enginemen generally, to allow him to ride on their engines when necessary to do so looking for wire troubles. The testimony developed that the performance of his duties in locating the trouble was better accomplished by his being on the engine than from a place in a coach, and that his use of the engine for the purposes of his work had been more or less frequent. It is manifest from this testimony that, although there may have been more probability of danger in a position on the engine, it was contemplated by his employer that he was to make use of the engine while discharging his duties. It certainly cannot be held as a matter of law that he was barred from recovery under these circumstances simply because he was upon the engine, instead of being at some other place on the train. Railway v. Valle, 60 Tex. 481.

Appellant cites the rule that, where an employé voluntarily selects a dangerous way when a safe or safer one is apparent and open to him, and he is thereby injured, he is guilty of contributory negligence. The applicability of this principle to the use of a way, method, or place which the master expressly authorized and provided should be used by the servant in the performance of his work, and which was more advantageous for the discharge of the particular duty, is not perceived. But, in any event, the question of the servant's negligence in riding upon the engine in performing his work was for the jury, and the charge was as favorable to defendant in this regard as appellant could have expected. Railway Co. v. Vestal, 38 Tex. Civ. App. 554, 86 S. W. 791. The derailment was the cause of McElroy's death, and not any risk ordinarily incident to his being upon the engine. The negligence of defendant which caused the derailment he could not have anticipated, and his exposure to such danger was not voluntary, and did not subject him to the defense of assumed risk or contributory negligence as a matter of law. We regard it as wholly immaterial where he was stationed on the engine when the derailment took place. If assumed risk had been pleaded, and it was not, it is clear that it would not have availed, for the reason that McElroy did not assume risks arising from an unexpected negligence of the master. Contributory negligence was pleaded, but the facts and circumstances did not present a case which conclusively established such negligence.

The assignments from 2 to 9, inclusive, complain of language used by plaintiff's counsel in the argument. One remark was, in...