Galveston, H. & S. A. Ry. Co. v. Butts

• Decision Date: 29 January 1919
• Docket Number: (No. 6138.)
• Citation: 209 S.W. 419
• Parties: GALVESTON, H. & S. A. RY. CO. v. BUTTS.
• Court: Texas Court of Appeals

Page 419

209 S.W. 419

GALVESTON, H. & S. A. RY. CO. v. BUTTS.

(No. 6138.)

Court of Civil Appeals of Texas. San Antonio.

January 29, 1919.

Rehearing Denied February 26, 1919.

Appeal from District Court, Bexar County; R. B. Minor, Judge.

Action by Clarence W. Butts against the Galveston, Harrisburg & San Antonio Railway Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Baker, Botts, Parker & Garwood, of Houston, and Templeton, Brooks, Napier & Ogden and Ed. W. Smith, all of San Antonio, for appellant.

Perry J. Lewis, Champe G. Carter, Randolph L. Carter, and H. C. Carter, all of San Antonio, for appellee.

SWEARINGEN, J.

This is a suit by the appellee, Clarence W. Butts, against the Galveston, Harrisburg & San Antonio Railway Company to recover damages for personal injuries suffered by him through the alleged negligence of appellant, which answered by general and special exceptions, a general denial, and special defenses.

A verdict was found by a jury in answer to special issues, upon which judgment was rendered for appellee for $18,500.

We adopt appellant's statement of the issues made by the pleadings:

Plaintiff was employed by defendant as switch tender, and in the discharge of his duties as such was walking in a path alongside the track furnished by defendant for the use of its employés in doing their work, and stumbled over a large metal pipe negligently placed and left in this path by defendant, and was thrown under a passing train and injured. It was defendant's duty to furnish plaintiff a safe place to do his work in, but, in disregard of this duty, defendant negligently placed and left the pipe so close to its track as to endanger its employés walking beside the track in the space used for such purpose, and while using this space in doing his work plaintiff stumbled over the pipe. The act of negligence complained of by plaintiff on which he based his cause of action was stated by him as follows:

"The plaintiff says that he was in the discharge of his duty, and that the defendant's said negligence in causing or permitting said pipe to be so close to the track on which its train was moving, as aforesaid, directly caused the serious injuries hereinafter set out, without any fault on the plaintiff's part."

Plaintiff alleged his injuries to consist of the crushing and mangling of his right foot, necessitating the amputation of three of his toes and a part of the foot, impairing the use thereof, and the condition of the foot necessitating a second operation to remove additional bone, flesh, and nerve; that plaintiff fell with great violence, injuring his back and spine; that as a result of the injuries plaintiff has suffocating spells and sleeplessness, and his eyesight has become impaired, his nervous system shocked and injured; that he is very tremulous, and his general health and strength greatly impaired; that his injuries are permanent, and have caused plaintiff to suffer great mental and physical pain, and will so constantly afflict him for the balance of his life; that prior to the accident plaintiff was a strong, healthy young man, with an average earning capacity of about $75 per month, which he reasonably expected to increase in the future, but that since his injuries he has been unable to work, and will be a cripple and invalid for the balance of his life, to his damage $30,000.

In addition to general and special exceptions and general denial, defendant pleaded —

"(1) Contributory negligence; that is, that some weeks prior to the accident it placed a load of pipe alongside and near its track, to be used in relaying its oil pipe line, which was a proper and necessary work and improvement, and that this pipe was placed north of, and about parallel with, the track, and at irregular distances therefrom, on each side of plaintiff's shanty where he was stationed, and that plaintiff knew where the pipe lay, and knew the whole situation, and of the danger to him (if any) incident to the situation; that defendant had no reason to anticipate injury to plaintiff by reason of the pipe being there so long as plaintiff exercised ordinary care in the discharge of his duties; (2) that defendant was engaged and plaintiff was employed by it in interstate commerce, and that plaintiff assumed the risk; (3) that if plaintiff was suffering or had suffered with any of the ailments complained of other than injuries to the foot, same were not caused by injuries received in the accident, but were due to disease and other causes beyond the control of defendant."

The material facts are: Appellee was an employé of the appellant, and at the time that he was injured he was performing the duties of his employment. These duties were those required of a switch tender. His work began at 6 p. m. and ended the following morning at 6 a. m. At 9 o'clock on the night of February 28, 1917, this injury occurred. As the first eight assignments depend upon the proposition that the evidence establishes as a matter of law that the appellant was not guilty of negligence, or, if so, that appellee assumed the risk or was guilty of contributory negligence that was the proximate cause of the injury, it will be sufficient to state only so much of the evidence as may sustain the findings of the jury upon each of those issues, all of which were submitted to the jury. We will therefore state the testimony of appellee himself, a part of the testimony of the day switch tender, that of the end switchman to whom appellee called that the road was clear immediately preceding the injury, and the testimony of the section foreman who placed the obstructing pipe in the north pathway, as well as the testimony of the material engineer, who gave exact measurements showing that the line of pipe was arranged with the object in view of leaving a clear path on the north side of the track. This witness shows that the length of pipe over which appellee fell was intended to connect the line of pipe over a wooden bridge. It was not on the bridge at the time, but this piece was laid alongside another piece of pipe on the east of the bridge. Thus there were two pieces of pipe instead of one at the place of injury. The east end of this extra length of pipe projected towards the track, leaving 39 inches of clear space between it and the track.

The appellee, after stating that the switch engine with a string of coaches came to the switch tracks where he worked every night at 9 o'clock, testified:

"I went back to my shanty, and when they whistled I looked to see if the block system was clear before I could let them out, and I looked and seen that the light on the block system was out, and I could not tell whether there was a train coming or not, and, of course, I had to walk down to see whether it was clear, and after I got close to it I could see that it was clear, and I gave them a signal to come on. They were running east and I was going west. I was going back to the shanty to throw another switch after they got into the clear; they were supposed to go back down the main line with these cars. The cars approached me first — there were a number of cars in the train, and the engine was on the end opposite from me. The cars were backing toward me, and the train was coming east. Therefore I had to get off the track in order to allow it to pass, and I continued on my course up the side of the track. When I stepped off the track I hollered to the switchman on the car, `All right,' and that the block was out, but it was clear, and I continued walking on past back to my switch. I was in a hurry about that work; there was a Katy passenger due there, and I wanted to get this string of cars out of the way to let the Katy out, and I went on then for the purpose of throwing my switch to let this train out. This was a Galveston, Harrisburg & San Antonio Railway Company train. In walking fast I stumbled over a pipe, and fell very hard and got hurt. I was walking in the path between the pipe and this string of coaches that were passing. There was a lot of pipe on the edge of the embankment. Those pipe had been there for several days. The pipe that caught me was not one of the general line of pipes on the edge of the embankment; it was one that was thrown right in the path, and that was the pipe that caught me. That pipe was a twelve to fifteen-inch pipe — it was a very large pipe. When I fell, I fell on this pipe face down, and rolled off on my left side and over on my back, and in rolling over I suppose that my leg flopped over and the wheel caught it — my foot was caught under the wheels.

"I was on the north side of the track, going west. I had a green light which I used to signal trains with me, and when I fell the light was broken. These cars came on out, and one of the switchmen lined up the switch, and they started back down the main line."

On cross-examination he testified:

"I always worked at nights. * * * Mr. Pearson worked in the daytime when I got hurt — before the accident. He was on from 6 in the morning until 6 in the evening, and I was on from 6 in the evening until 6 in the morning. When I went on duty at that time of the year it was just about sundown.

"Yes, sir; I had seen these pipe before the time of the accident. I just noticed them there about four or five days. I had noticed them only the last four or five days. * * *

"This string of cars were in the yards, and when I went back they were coming out of the yards — coming out of the yards towards me — they had just whistled for that. The engine was on the far end. They had about fifteen or seventeen cars — something like that. This same move was practically made every night. That was equipment for trains coming down to the San Antonio depot every night. And when I saw the block was clear, this string of cars was coming back towards me, and I gave them a signal as soon as I saw the block was clear, and then turned around back west towards the shanty. The semaphore is on the south...