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

• Court: Texas Court of Appeals
• Writing for the Court: Buck
• Citation: Galveston, H. & S. A. Ry. Co. v. Wilson, 214 S.W. 773 (Tex. App. 1919)
• Decision Date: 31 May 1919
• Docket Number: (No. 9110.)
• Parties: GALVESTON, H. & S. A. RY. CO. v. WILSON.

Page 773

214 S.W. 773

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

(No. 9110.)

Court of Civil Appeals of Texas. Ft. Worth.

May 31, 1919.

Rehearing Denied June 28, 1919.

Appeal from District Court, Tarrant County; R. E. L. Ray, Judge.

Action by W. T. Wilson against the Galveston, Harrisburg & San Antonio Railway Company. From judgment for plaintiff, defendant appeals. Reversed and remanded.

Thompson, Barwise & Wharton, of Ft. Worth, Baker, Botts, Parker & Garwood, of Houston, and Alfred McKnight, of Ft. Worth, for appellant.

R. M. Rowland, of Ft. Worth, and Louis Wilson, of Dallas, for appellee.

BUCK, J.

Appellee, hereinafter styled plaintiff, sued appellant, hereinafter styled defendant, for personal injuries alleged to have occurred at Sabinal, Tex., about July 18, 1916. He alleged that he, with others, including members of a freight train crew, who were employés of the defendant in the nighttime were engaged in the work of loading certain horses and mules into a stock car of the defendant, which car, when so loaded, was to be transported by the defendant and its connecting carrier from Sabinal to North Ft. Worth. He further alleged:

"That while plaintiff was doing the work aforesaid, and was in the exercise of due care for his own safety, and was in a stock pen containing said animals, or in the chute leading from said pen to the door of the car into which the animals were being loaded, and was properly urging and driving said animals through the chute and into the car, one of said employés of the defendant company, a member of said train crew, whose name is to plaintiff unknown, acting in the course of his employment, and within the actual and apparent scope of such employment, and in the effort to further the defendant's business by aiding in the loading of said car, but at the same time acting negligently and incompetently, suddenly got on or in the said chute near the end of the same next to the car, and flashed and displayed his lighted train lantern in said chute, and immediately before the eyes of certain of said horses and mules, whereby they, or at least some of them, were blinded, frightened, and confused, and caused to rush back down the chute and into the pen, knocking down and trampling him."

Plaintiff further alleged that he was rightfully at the place where he was at the time of the injuries, and was rightfully engaged in the work he was doing, and "the defendant, its agents and employés, owed him the duty to exercise ordinary care to protect his safety while he was so engaged, but they and each of them, negligently failed to discharge such duty; that such failure consisted in causing and permitting the act of negligence above set out." He prayed for damages in the sum of $4,000, and upon a trial before a jury plaintiff recovered a judgment in the sum of $2,000, from which judgment the defendant has appealed.

Assignments 1 and 2 complain of the refusal of the court to submit the following special requested instruction, to wit:

"You are instructed that if you believe and find from the evidence in this case that the mule or mules or horses, if any, which ran over the plaintiff, were caused to do so by reason of a light or flash other than a lantern of defendant's brakeman or other employé, then you are instructed that your verdict herein will be for the defendant herein, even though you believe and find from the evidence that the plaintiff sustained the injuries, or any of the injuries, complained of."

The evidence shows that the stock pens, where plaintiff's mules and horses had been placed for the purpose of loading, had a chute or narrow passway leading from one of the pens to the open door of the car as it was being loaded. This chute consisted of two sections, the one nearest the pen being wider than the one next to the car. Plaintiff's employé, Paul Johnson, undertook to drive the mules or horses, a few at a time, from the pen into the chute, and by the plaintiff, who was stationed on the side of the chute. When the animals passed plaintiff, he would get behind them and drive and prod them into the car, being aided by two members of the train crew, one on each side of the narrow chute, and standing on the outside thereof on a narrow platform or footpath. Plaintiff testified in part as follows:

"I would say I began loading the animals into the car at about nine-thirty at night; it might have been a few minutes earlier than that. * * * Mr. Johnson went down with me to help load the stuff, and a young fellow that works at the depot and a Mexican that was there went down, and the train crew. Johnson is the man whose deposition has been read to the jury. I had an arrangement with him to accompany the animals on the train from there to North Ft. Worth, and he did so. I did not intend going with them myself, but I was sending Johnson along as the caretaker. Johnson was helping me load the animals. * * * You see they go down, set the car, and put down the platform between the loading chute and the door, and fix the door and stand at the door, and then we load them from the pens. The railroad people do that. * * * When the car was set at the chute there was a brakeman rode down on top of that car, supposed to set the brake or something. He was on top with a lighted lantern. I told Mr. Johnson to bring the mules in from four to seven at a time, and I had a hickory stick about six feet long—it was a measuring pole, is what it was—and he would bring them in to me and I would run them up on the chute. This stuff was brought up here, and there was a brakeman on top of the car with a light. It is pretty near an impossibility to drive a bunch of mules facing a light at night. I had same racket with this brakeman, and it is a fact that I used right smart of rough language, and I finally got him off, and he got down on the side of the chute.

"There is a platform running up to this chute, I would say about half way up the top of the fence, for a man to walk up and down, and if they got up there they bothered me with the light, and I got them off of there, and we got all the stock loaded except seven or nine head. There was probably five or six head in this chute, and with the light not being there, when the mules turned back to come back, why I could step to the other side, because a mule is going to follow his head, whichever way he turns. His head was ahead of him, and he would go that way and I would step to the other side. Several of them had run back two or three times before that, and I just stepped to one side. This small chute is about three and a half or four feet wide, so that a good-sized mule or horse could not turn in there, and after he gets into that chute there is a little gate that swings back, and when I would get them started up there they would never stop until they got into the car. We got this bunch of mules up there, and there was a light throwed over from the side, and when that light was throwed in there it blinded me and the mules, too, and when the mules came back I could not tell whether it was a mule or a shadow, and the whole bunch ran over me. I don't know how many hit me, but they ran over me. I suppose the light that flashed there came from the lantern that a brakeman had; they had been around there with them, and they had the lights, and they were the only people that I saw with a light—the brakemen that were down there.

"When this lighted lantern was flashed or thrown, it was thrown over into that pen. The way a man could get up high enough to throw the light over into the chute is on the platform running there; it runs up the fence, about half way up to the top. There is a platform on both sides that the men walk up and down in loading. They use the platform to aid them in loading the animals. They punch them through the fence as they go by to urge them on and keep them from stopping. * * *

"I don't know how many feet the lantern was away from the eyes of the mules. He might have been able to hit one of them on the head with the lantern. He could reach over there; there was just a fence between them. * * * There had been no light around there except the lights had by the members of the train crew. I did not see any other light there at all. I don't remember whether the boy from the warehouse or depot that went down there had a light or not; he probably had, because he goes down there, and he is the man that seals the car, and probably he had a light."

On cross-examination the plaintiff further testified:

"As I have testified, I think this man that was there with the lantern turned his light over there to head a mule back towards the car. That is my opinion as to what he did, and at that time I was probably from seventeen to twenty feet from the gate where the man was. * * * I could not say that I really knew the mule that knocked me down was coming back at all, because I could not see him. As soon as this light flashed the mules were moving, and I could see the shadows across the pen, but to see it on the fence I could not tell a shadow from a mule. * * *

"The instant the man threw the light over there the mules ran over me. I could have had time to get out of the way if I could have seen which way they were coming, but the lantern blinded me—the...