Ft. Worth & D. C. Ry. Co. v. Anderson

• Decision Date: 15 April 1909
• Citation: 118 S.W. 1113
• Parties: FT. WORTH & D. C. RY. CO. v. ANDERSON.
• Court: Texas Court of Appeals

118 S.W. 1113

FT. WORTH & D. C. RY. CO. v. ANDERSON.

Court of Civil Appeals of Texas.

April 15, 1909.

Rehearing Denied May 13, 1909.

Appeal from District Court, Childress County; S. P. Huff, Judge.

Action by W. P. Anderson against the Ft. Worth & Denver City Railway Company. From a judgment for plaintiff, defendant appeals. Reversed and rendered.

August 6, 1907, appellee was in the employ of appellant as a switchman in its yards at Amarillo. He was then about 28 years old, and had had several years' experience in such work. At about 9:30 p. m. of the day mentioned, while attempting to get on a moving freight car, appellee had his right foot crushed as the result of one of the car's wheels running over it. After an engine pulling eight or nine cars had moved with them off a switch or side track to and southeast on the main line track, appellee in the discharge of his duty had set the switch so the train might be backed on the main line northeast to another switch about 250 feet distant which it was to take. He then signaled the engineer to back the train, and, standing astraddle of one of the rails of the track, awaited the approach of the train as it backed northeast. When it got within his reach, he grasped a handhold on the end of the first of the cars approaching him, placed his left foot on the brake beam thereof situated in front of the wheels, and attempted to place his right foot on the beam. Because, he testified, his said foot was caught by a piece of baling wire about nine feet long, with its ends tied together, as he attempted to place it on the beam, his foot was, instead, thrown under the wheel of the car. In his petition appellee alleged negligence on the part of appellant in permitting the wire to be on its track or roadbed. Appellant answered by a general denial and a general plea of negligence and assumed risk on the part of appellee. In his charge the court instructed the jury to find for appellee if they believed "that his foot was entangled in a wire, which was then on the defendant's track or roadbed, and thereby jerked the foot of the plaintiff under the wheel of the car," and further believed "that defendant or its employés in charge of its yard at Amarillo were negligent in allowing said wire to get and remain on said track," etc. The appeal is from a judgment in appellee's favor for the sum of $3,000.

Spoonts, Thompson & Barwise, Fires & Diggs, and J. M. Chambers, for appellant. W. B. Howard and William H. Allen, for appellee.

WILLSON, C. J. (after stating the facts as above).

After careful consideration of the record we are of the opinion that appellant's first assignment of error should be sustained on both the grounds urged, to wit, that the evidence failed to show appellant and did show appellee, to have been guilty of negligence. It was appellant's duty to use ordinary or reasonable care to have its track and roadbed so free of obstructions calculated to cause injury to its employés as to render same reasonably safe for appellee's use in the discharge of his duties. It may be conceded that the wire referred to by appellee, if on the track, was an obstruction it was appellant's duty to use ordinary or reasonable care to discover and remove. But we think there is not in the record evidence sufficient to support a finding that it had not exercised such care. Testimony showing the wire to have been on the track and appellee to have been injured because it was there alone we think was not sufficient to support such a finding. 4 Thompson on Neg. p. 76. It does not appear from the record when the wire got on the track. Without fault on appellant's part, it may have fallen to the track from one of the cars which the evidence shows only an instant before had passed the point where appellee was when injured, or it might only a moment before he was injured have been thrown on the track by a person for whose conduct appellant was not responsible. In either of such events, reasonably it could not be said that in the exercise of proper care appellant should have discovered and removed the wire before the train as it was backed towards the switch reached and injured appellee. And logically, therefore, it could not be said in such a state of the evidence that it was sufficient to support a finding of negligence on the part of appellant on the ground that it had permitted the wire to be on its track. 3 Elliott on Railroads, p. 721.

Furthermore, it does not appear from the record whether the wire was wholly on top of the ground, where by a proper and timely inspection it should have been discovered, or, instead, was so embedded in and covered by the ground as to have rendered a failure by appellant to discover and remove it excusable. And this omission in the evidence seems to be due entirely to the failure of appellee when he was injured promptly to assert the claim he afterwards made, that the cause of his injury was the wire on the track. The wire, it seems, was seen by appellee alone. Directly after he was hurt, he accounted for the accident by saying his foot had slipped from the brake beam. Not until the next day thereafterwards did he say anything about a wire having had anything to do with the accident. A search was then made by appellant's agents at the place where appellee testified he had thrown the wire, but they failed to find it. An inspection of the wire or of the portion of the track it was on or under or of both the wire and the track might have furnished evidence tending to show whether at the time it caught appellee's foot the wire was wholly, or only partially, and if the latter to what extent, on top of the ground, and how long it had been in the position it was in. From such evidence an inference of negligence on appellant's part might or might not properly have been drawn. Without reference to how or where it got there, such an inference could not, we think,...