Galveston, H. & H. R. Co. v. McLain

• Decision Date: 24 October 1919
• Docket Number: (No. 7745.)
• Citation: 218 S.W. 65
• Court: Texas Court of Appeals
• Parties: GALVESTON, H. & H. R. CO. v. McLAIN.

218 S.W. 65

GALVESTON, H. & H. R. CO. v. McLAIN.

(No. 7745.)

Court of Civil Appeals of Texas. Galveston.

October 24, 1919.

Rehearing Denied December 11, 1919.

Appeal from District Court, Galveston County; Clay S. Briggs, Judge.

Action by Calvin McLain against the Galveston, Houston & Henderson Railroad Company. From judgment for plaintiff, defendant appeals. Reversed and rendered.

Baker, Botts, Parker & Garwood, of Houston, John L. Darrouzet, of Galveston, and McMeans, Garrison & Pollars, of Houston, for appellant.

James B. & Charles J. Stubbs and F. Spencer Stubbs, all of Galveston, for appellee.

GRAVES, J.

This is the second appeal to this court in this cause. Formerly it was here upon McLain's protest against an instructed verdict below for the railroad company. This time it comes upon the railroad company's complaint over a $7,500 verdict and judgment against it. Both litigants in their briefs now before us assert that the facts developed in the two trials below were essentially the same, and a full statement of them as first presented is found in this court's opinion, reported in 195 S. W. 292. The case as then presented to this court turned mainly on whether McLain was an invitee on the railroad track in doing the work he was engaged in when injured, or a mere licensee or trespasser, and on whether or not he was guilty of contributory negligence. It was held that the facts presented constituted him an invitee, and did not convict him of contributory negligence as a matter of law, but left that an issue for the jury. While this court then, after first finding the undisputed fact to be that McLain not only knew that the sliver that held him was there but had so known for some time before the accident went further and said the matter of whether or not the railroad company was negligent in permitting it to remain there was for the jury, that question did not in fact particularly challenge attention because not pressed for consideration.

Upon the present appeal, however, it is made the principal issue; in other words, appellant now directly contends that it was not shown to be guilty of any actionable negligence toward McLain in allowing the railroad track to be in the dilapidated condition it was in with reference to low places and splintered rails, since he was an invitee thereon and had full knowledge of these defective conditions. This position is sustained, and as a consequence the judgment is reversed, and the cause is here rendered in appellant's favor.

As stated, the facts are conceded to be substantially the same as before and need not be again detailed at length; but as the appellee upon this trial attempted to explain more at length about his previous knowledge of the low places in and the slivers on the track, thereby creating some apparent discrepancies in details between his two versions, the essentials of the uncontroverted proof this time made may be briefly epitomized:

The railroad company's side track ran along Mechanic street in Galveston past the warehouse and platform of Stoltz & Peterson for whom McLain was working, and the company habitually placed cars for their use on this side track at some place adjacent to this warehouse. Beyond so placing them, the railroad company rendered no further service touching the cars, but Stoltz & Peterson's employés would then move them to the firm's conveyor or warehouse door to be unloaded. After a car was unloaded, it would be moved away so that another loaded car could be placed at the conveyor or warehouse door for unloading. On this occasion, as was customary when the empty could not be started with pinch bars, a "car puller"—or a drum and cable operated by electricity—was used, the loaded car being brought down against the empty one with sufficient force to start it, and, after it had rolled about 7 feet, several of the Stoltz & Peterson employés began pushing it, some from the side, and others, including McLain from a position on the track between the rails at the hind end. After they had thus pushed the empty about 7 or 8 feet, a sliver or splinter from one of the rails penetrated McLain's pants and held him until the loaded car, which had continued moving toward the empty car after bumping it, ran upon him; its movement having been accelerated just before reaching him by running down a low place in the track. The track and rails along where the accident occurred were in a dilapidated condition, in that the rails were splintered, with slivers sticking out from their sides, and the track was uneven from high and low places in it to such extent that it was a hard matter to move cars over it.

This court must again find, and that upon his own direct and repeated admissions —corroborated to some extent at least by other testimony and by certain physical facts—that McLain at the time of and before his injury had full knowledge of these conditions.

It was shown by testimony, as well as through agreement of his counsel, that the appellee had sworn upon the former trial in 1916 to have seen and known the condition of the track and splinters there for some time before he got hurt. On the present trial, however, as above indicated, he went at length into the matter, at first qualifying this former admission about having seen the splinters there, indeed, flatly contradicting it; but on extended cross and redirect examination he thus finally concluded the whole subject:

"I testified I believe the first time, a little over a year ago, and also believe I testified the last time I testified in this case three or four months ago, that I knew that there were shivers and splinters on the rail, and that I had seen them there, those shivers and splinters on the rail, ever since I had been there. When I so testified I was trying to tell the truth. When I testified before that I had seen those splinters and...