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

• Decision Date: 08 December 1920
• Docket Number: (No. 1713.)
• Citation: 228 S.W. 637
• Parties: FT. WORTH & D. C. RY. CO. et al. v. SMITHERS.
• Court: Texas Court of Appeals

228 S.W. 637

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

(No. 1713.)

Court of Civil Appeals of Texas. Amarillo.

December 8, 1920.

On Motion for Rehearing, February 2, 1921.

Rehearing Denied March 2, 1921.

COPYRIGHT MATERIAL OMITTED

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

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

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

Bailey & Richards, of Dalhart, F. P. Works, of Amarillo, and Joseph Gill and D. A. Paddock, both of Clayton, N. M., for appellee.

HUFF, C. J.

Smithers brought this action against the Fort Worth & Denver City Railway Company and the Colorado & Southern Railway Company, jointly, for damages alleged to have been occasioned by a fall while in the employ of the appellants. Before the trial court the following agreement was entered:

"It is agreed by and between the parties hereto that at the time of the injury in question both the defendants and plaintiff were engaged in interstate commerce, and it is further agreed that at the time of said injury the plaintiff was in the general employment of the Fort Worth & Denver City Railway Company, and in the special employ of the Colorado & Southern Railway Company."

The appellee Smithers worked for the Fort Worth & Denver City Railway Company in 1916 for about two months as flue borer, the duties of which were connected with the roundhouse at Texline, Tex. Some time in April, 1917, appellee again took employment from appellants as hostler's helper, and continued in that position for about 24 days, until he was injured, and for which he sues in this case. His duties were to help knock out fires in engines, put them on the turntable, and take them into the roundhouse, and such other duties as he was directed to perform under the direction of the hostler. On the evening of April 24, 1917, an engine came in over the C. & S. from Trinidad, Colo., and was turned over by its crew to the hostler and his crew at the roundhouse, about 40 or 50 feet from the turntable. The engine was stopped on what was called the cinder dump track. To keep the cinders from piling up the engine was moved backwards and forwards so as to scatter the cinders until the fire box and ash pan were empty. The appellee and the hostler and another helper went into the engine cab, and the appellee thereupon opened up the ash pan and says they then proceeded to shake the grates. After he got the grates cleaned he tried to close the ash pan, and it would not close from the deck of the cab, and when he found it would not close he started to get out of the cab, with the intention, he says, of putting his shoulder to the lever and from the ground to close it. While in the cab he made considerable effort, by the use of the lever, to close the pan. He says he made about 10 or 12 efforts, and that it would not operate by the lever, and that he then, with the purpose of going under the engine to close the ash pan, started out of the cab. The lever was on the fireman's side of the cab, in front of the fire box, and the fire box is under the engine, and the lever came up into the cab from that box, and the fireman dumped the ashes from the engine by the use of the lever. The lever was about two or three feet up into the cab, and the pan was let down with the lever, which is described again as coming up about to a man's waist. The appellee says the grates shook all right, but that the pan would not close; it would open, but would not close. When the appellee started to get down he claims his foot slipped in greasy water, and that he fell backward into the turntable pit, which is constructed out of some sort of a hard substance, and that the bottom of the pit from the cab floor was about eleven feet. The water and grease is accounted for by the fact that the engine crew, who brought in the engine from the trip, ate their lunch in the cab, and after getting through washed their dishes with hose attached to the boiler by throwing the water on and over them. The appellee says he knew of this custom of the engine crews. He further stated after he got into the cab he noticed the water, but he did not know there was grease on the floor, but knew of the custom of so washing the dishes. The premises were not lighted and there had been no lights used there during the time of appellee's employment, and he knew there were no such lights. The light on the engine was extinguished, which the appellee knew. He testified he did not know that the hostler had run the engine onto the turntable when he started to get out of the cab, and accounts for his want of knowledge on the ground that he had been busy, trying to close the ash pan with the lever and that there were no lights. He had a coal oil torch when he went into the cab, which he says was blown out by the wind some four or five minutes after getting into the cab. He did not relight the torch or try, because, he says, the wind would have blown it out. He also testified that the custom was not to run the engine onto the turntable until after the cinders, etc., were emptied. The evidence tends to show that appellee fell backward into the pit, and that by the fall his coccyx was broken, and that one of the two bones in his hand was broken or injured. He was sent to the sanitarium by appellants for treatment, where he remained for some six or seven days, and was then discharged. Some time in August, 1918, after the fall, he had partial paralysis, and some of the testimony would authorize a finding that this resulted from the injuries received by the fall, and one physician is of the opinion that it would probably result in total paralysis. However, we will make statement with reference to his injuries more definite in considering the assignment that the verdict is excessive. The appellee, by his petition, alleged that the ash pan on the engine was so constructed as to be operated by a lever projecting into the cab; that this lever failed to work the ash pan from that position, and that thereupon he started down and out of the cab of the engine to go under the engine and close the pan. In connection therewith he alleges that grease and water had been left on the floor of the cab by the engine crew which brought it into the yard. It is alleged, substantially as testified to, that previous to starting out of the cab he had been busily engaged in trying to work the lever, and did not know that the hostler had moved the engine on the turntable, and that he did not know such facts when he attempted to alight from the engine, and that the premises, turntable, etc., were not lighted; that he stepped into the grease and water, and his foot slipped, and he fell backward into a concrete pit, a distance of about 11 feet, striking the concrete floor on the lower end of his spine; that the coccyx bone was broken, and the bones of his right hand were also broken.

The appellants answered by general denial, assumed risk, and contributory negligence.

The court gave a general charge, and in the fourth paragraph thereof submitted the issue as to a violation of the Safety Appliance Act (U. S. Comp. St. §§ 8617-8623), and in the tenth paragraph submitted the facts authorizing recovery under the Employers' Liability Act (U. S. Comp. St. §§ 8657-8665). The jury rendered a verdict for the sum of $15,000, and judgment was entered in accordance with the verdict.

If the jury found for the appellee under the fourth paragraph of the charge, this would eliminate the question of whether the things set out in paragraph 10 were negligence and the question of assumed risk and contributory negligence; but, as the verdict is a general one, we are unable to determine whether the jury based their verdict on the violation of the Safety Appliance Act or under the Employers' Liability Act. It will therefore be required of us to examine the court's charge presenting both features.

The first, third, fourth, sixth, eighth, and tenth assignments will be considered together, as they each assail paragraph 10 of the court's charge, which is in substance, as follows: If the jury should find from the evidence that appellee, in the discharge of his duties, entered the engine cab, and to empty ashes, etc., from the ash pan, and if there was no light, and it was dark in and around the locomotive and the place where the work was being done, and while he was on the engine appellant's employees ran the engine on the turntable, without the knowledge of the appellee, and that appellant's engineer and fireman had caused water and grease to be on the deck of the cab, and if they found and believed a failure to light the place or the running of the engine on the turntable, or the water and grease on the deck, were negligence, or each of said acts was negligence, and if from the evidence they found appellee, while undertaking to get down out of the deck of the cab, stepped in or on grease on the deck of the cab, and that this caused him to slip and fall, and that he was injured from the fall, and that the injuries were the direct and proximate cause (result) of all or any of the acts of negligence, as alleged in the appellee's petition, to find in his favor, unless they should find for appellants under instructions thereafter given.

It is asserted by the first assignment that the appellee, by remaining on the engine, after he learned there was water on the floor of the cab, assumed the risk incident thereto. This seems to be based on the testimony that some of the operatives of engines sometimes ate their lunch on the engine and washed the dishes with hot water from the boiler by a hose connected therewith, and that before the injury the appellee noticed the water upon the floor, and that when he started down his foot slipped in the grease or water on the...