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

• Decision Date: 11 April 1914
• Docket Number: (No. 599.)
• Citation: 167 S.W. 279
• Parties: FT. WORTH & D. C. RY. CO. v. STALCUP.
• Court: Texas Court of Appeals

Page 279

167 S.W. 279

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

(No. 599.)

Court of Civil Appeals of Texas. Amarillo.

April 11, 1914.

On Motion for Rehearing, May 16, 1914.

Appeal from District Court, Dallam County; D. B. Hill, Judge.

Action by R. E. Stalcup, administrator, against the Ft. Worth & Denver City Railway Company and another. Dismissed as to the other defendant before judgment, judgment for plaintiff, and defendant Ft. Worth & Denver City Railway Company appeals. Affirmed.

Thompson & Barwise, of Ft. Worth, Clifford Braly, of Dalhart, and W. B. Chauncey, of Wichita Falls, for appellant. R. E. Stalcup, of Dalhart, Del W. Harrington, of Amarillo, Goree & Turner and Cowan & Burney, all of Ft. Worth, for appellee.

HUFF, C. J.

The appellee, R. E. Stalcup, as administrator of the estate of J. E. Brown, deceased, brought suit for recovery of damages occasioned by the death of J. E. Brown, who in March, 1911, lost his life while engaged in the service of the appellant, as brakeman in the switchyards at Texline, Tex. The trial resulted in a verdict for the appellee in the sum of $7,500.

It is alleged in the petition that J. E. Brown, deceased, was violently thrown from the cars of appellant by reason of the negligence of appellant in the following particulars, to wit:

"(a) That the braking equipment on the car on which the said Brown was riding was defective, in this: That the ratchet pawl on said braking equipment, and the bolt holding the same, was so broken and in bad order and missing as to render the said braking equipment useless and dangerous to one attempting to use the same. (b) That the train and car on which said Brown was riding at said time was being moved and operated at an unusual and unnecessary high rate of speed for the purpose for which they were being moved and operated, and while being so moved and operated was suddenly stopped with the unusual and unnecessary force and jar and shock that the proximate results of the negligence of the said defendant, as alleged in the preceding paragraph, the said J. E. Brown was violently thrown to the ground on the tracks of the defendant and run over and killed as aforesaid."

The ground (a) set out in the pleadings was not submitted to the jury as an issue by the trial court, but only the ground set out under (b). The facts in this case show that Brown was a brakeman in the employ of appellant company, and that the train crew with which he was working at the time the accident occurred was composed of Gaynor, conductor, O'Nell, brakeman, Thompson, engineer, and Shaw, fireman; that they were doing the work of switching incident to making up a train which they were to carry out that night at 9 o'clock to Trinidad, Colo. This train was partially made up, and was standing on what is designated in the record as the passing track. Just prior to the accident Brown and his crew took the engine and went down to a side track just west of the main line, known in the record as track No. 1, to get a cut of 32 cars, the rear 6 of which, and probably others, were going into the train they were making up. The accident happened while the crew were handling this string of 32 cars, and the evidence in this case relates to what was done from the time the crew picked up this string of cars 3,000 feet south of where the accident occurred. The evidence shows that this string of cars was pulled north until the last, the thirty-second car, had passed the switch, about two or three car lengths by which the passing track was reached, designated as "A" on the map in the record, and located about 20 feet south of the most southern water tank shown on the map. While this string of cars was being moved north from the starting point, Gaynor and O'Nell and Brown rode on the rear or thirty-second car until they reached the switch stand, marked "C" on the map, which was the switch to track No. 1, and there Gaynor got off to throw that switch so that certain of the cars could be kicked back on that track. O'Nell rode on up until he got to switch A, where he got off to throw that switch so that the rear of these cars could be kicked in onto the passing track. Brown remained on top of the thirty-second car for the purpose of riding this cut of 6 cars down onto the passing track, where they were to be coupled onto the partially made up train. The accident occurred after the rear or thirty-second car had cleared switch A, and Brown's body after the accident was found lying under the front trucks of the thirty-first car on the east side of the track, and opposite and a little north of the north water tank. Each of appellant's witnesses testified that they did not notice anything unusual or out of the ordinary in any movement of the train from the time they picked up this string of 32 cars until the accident occurred, either as to speed or as to any stop that was made; that the switching in every particular was done in the usual and customary manner; that there was always more or less jarring of the cars in switching, caused by the running up of the slack; and that there was from 8 to 12 inches of slack between all freight cars. All the train crew knew the work that was to be done and the cars that were to be handled and switched in on the passing track.

Gaynor, the conductor, testified that when the accident occurred he was somewhere between switch A and B; that he was unable to determine his exact location, but that he was about 5 or 6 car lengths from the rear end of the string of 32 cars; that he walked over there from switch C, where he got off, and that it was about 1½ minutes after he got off at switch C until the accident occurred. "As to whether I saw or heard Brown fall from the car, I just heard his lantern break, and when the wheels ran over him I heard him moan. As soon as I heard the lantern break, I gave the engineer a violent stop signal, and at the time I gave this signal the cars were moving south and the train was stopped in response to the signal. O'Nell also gave the signal, and called to me that Brown fell or was killed. As soon as I heard Brown's lantern fall, I went to where he was lying. He was lying across the rail and between the trucks of the forward pair of wheels on the thirty-first car, that is, between the two wheels on the north end of that car. There are two wheels that constitute the trucks of the car, and there are a set of trucks near each end of the car. He was lying on the right-hand side of the truck looking towards Denver, on what would be the east side. I examined the indications there to determine whether or not any other wheels had run over him, and I found from the signs that the south two wheels on the east side of this thirty-first car ran over his body, and his body had been dragged, I should judge, 25 or 26 feet, and his body was lying just north of the north water tank, or very close. It would not be over 8 or 10 feet. I did say the train was moving south, and that his body was dragged 25 feet in a southerly direction." He testified that Brown was nearly dead when he got to him, and tried to talk, but could not. The wheels ran over him just about the abdomen. "The last time I saw Brown after I got off the car he was on the rear car about the center, and was standing up." He stated further:

"When I went back from the depot to the place where the accident occurred, I investigated to find out as to how Brown came to fall, and after this examination I never did make up my mind or find out how Brown happened to this accident."

He further testified as to the condition of the pawl on the brake:

"From my association with him, Brown, as a trainman, conductor, or brakeman, I would say, as to his capabilities as to a brakeman or conductor, there could not have been any better."

O'Nell testified:

That the "train of 32 cars moved a couple of car lengths north after I dropped off at the switch [referring to switch A]. I do not know whether the last car of these 32 went north of the north tank or not. I do not know just how far they did go beyond the tank. After the south end of that string of cars passed over that switch [referring to switch A] and cleared it so we could get back on the passing track, I gave the engineer a stop signal, and the train was stopped in response to this signal; then I next gave the engineer a back-up signal, and in response to this back-up signal the engineer started back. I think the entire train had passed the switch track; the last car in the train had passed the switch at the time I gave the stop signal. It ordinarily takes from 10 to 15 seconds to throw a switch. Immediately after I threw the switch, I gave the back-up signal. Some 18 or 20 seconds elapsed between the time I gave the stop signal and the back-up signal. The two signals would be very close together. In reference to the estimates I have given as to the time between the throwing of the switch and giving the back-up signal, and the time to throw the switch, I have never experimented to see what the actual time would be. After I had thrown the switch for the passing track, and had given the engineer the back-up signal, I then started up north to make the cut; that is, to cut off the cars that would be kicked into our train on the passing track. I started up the east side of the train; I was running. My purpose in running up along the train was to get up to the place to cut off these cars before they got to going too fast, and so that the other cars would not get over the switch. The first I knew about the happening of this accident was when I was running up along the train I heard the lantern fall and Brown groan. I think I was then about a car and a half up north from where Brown fell. I immediately gave a stop signal. When the train stopped after the accident I was north of where Brown's body was. The cars were moving south at the time I gave this sudden stop signal. They moved about 30 feet, I should think, after I gave the signal. The train...