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

• Decision Date: 16 February 1918
• Docket Number: (No. 8786.)
• Citation: 201 S.W. 1049
• Parties: FT. WORTH & D. C. RY. CO. v. MILLER.
• Court: Texas Court of Appeals

201 S.W. 1049

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

(No. 8786.)

Court of Civil Appeals of Texas. Ft. Worth.

February 16, 1918.

Motion for Rehearing Withdrawn March 23, 1918.

Appeal from District Court, Tarrant County; R. B. Young, Judge.

Action by J. M. Miller against the Ft. Worth & Denver City Railway Company. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

Thompson, Barwise & Wharton and A. J. Baskin, all of Ft. Worth, for appellant. Simpson & Estes, of Ft. Worth, for appellee.

DUNKLIN, J.

The Ft. Worth & Denver City Railway Company has appealed from a judgment against it in favor of J. M. Miller for damages as a result of personal injuries sustained by him while employed in the roundhouse of the railway company in the city of Ft. Worth.

Located in the roundhouse was a turntable about 70 feet in diameter, which was used to turn the engines after they had been run from a track outside to a track constructed upon the turntable. The table was equipped with an electrical appliance for the purpose of turning it by electricity. An attachment known as the "rheostat" was located on the turntable, and was a device by means of which the current of electricity necessary to turn the table was turned off or on. Attached to the table was a lever which extended several feet beyond the outer circumference of the table, which was designed and used for the purpose of turning the table whenever the electric appliance was not in working order. This lever extended 6 or 7 feet over the edge of the platform which surrounds the turntable, and inclines upward from the turntable; being a height of about 18 inches above the platform nearest to the other circumference of the table and about 3 feet above the platform at the farther end.

Plaintiff was employed by the company to perform services in and about the roundhouse, including the work of putting out and building fires in the engines, and assisting in placing engines on the turntable and turning them around. On the occasion in controversy, an engine of great weight was placed on the turntable by Mr. Kelly, the foreman, and plaintiff who was working under him. After so placing it, Mr. Finley and Mr. Johnson, two other employés, attempted to turn the table by using the electric appliance provided for that purpose, but were unable to do so. When the foreman and plaintiff made that discovery, the foreman suggested that there was no sand in the box and that the absence of sand was the cause of the failure of the table to turn. Thereupon he directed plaintiff to get a bucket of sand and put it in the box, which plaintiff did. But as the table still failed to turn, the foreman ordered the plaintiff to assist in turning it by pushing on the lever. The foreman, Finley, Johnson, and plaintiff all took hold of the lever and began pushing it; plaintiff having hold of the lever at the point nearest to the outer circumference of the turntable. Soon after plaintiff began pushing upon the lever the table began to turn in consequence of the working of the electric appliance. At that time, plaintiff was in a stooping position with his breast against the lever and his legs so extended that his feet were within about one foot of the pilot of the engine, which extended over the platform surrounding the turntable. According to plaintiff's version, when the table thus began to turn as a result of the application of electric power, the lever upon which he was pushing suddenly pulled away from him and caused one of his feet to so slip or stumble as to be caught under and dragged by the pilot of the engine until it came in contact with one of the rails of a track leading to the turntable, and thereby his leg was bruised and crushed. Recovery for damages for that injury was the purpose of this suit.

The trial was before a jury, who returned a verdict in response to a general charge submitted to them by the court. While there were numerous issues of negligence tendered in plaintiff's petition, the following were the only ones submitted in the court's charge: First, that the place at which defendant was working at the time of his injury was insufficiently lighted; second, that the electric appliance and apparatus installed for the purpose of turning the table was not in proper working condition; third, that the electricity had been turned on at the time plaintiff undertook to assist in turning the table by means of the lever with no one in charge of the rheostat to cut it off, all without the knowledge of the plaintiff; fourth, that the lever provided by defendant by which to turn the table was too short to be used for that purpose.

Among other defenses, the railway company pleaded specially that at the time of plaintiff's injury he was engaged in the service of handling interstate commerce, and that, if he was injured through the negligence of the defendant as alleged in his petition, he assumed the risk of such injury therefrom, under and by virtue of the federal Employers' Liability Act, because, prior to and at the time he undertook to perform the services he was performing at the time of his injury, he knew of such negligence and of the risk and dangers incident to the performance of such service under the circumstances, or in the necessary and proper discharge of his duties should have acquired such knowledge, and...