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

• Decision Date: 01 November 1899
• Citation: 54 S.W. 264
• Parties: GALVESTON, H. & S. A. RY. CO. v. HUGHES et ux.<SMALL><SUP>1</SUP></SMALL>
• Court: Texas Court of Appeals

54 S.W. 264

GALVESTON, H. & S. A. RY. CO. v. HUGHES et ux.¹

Court of Civil Appeals of Texas.

November 1, 1899.

Appeal from district court, El Paso county; A. M. Walthall, Judge.

Action by Edward P. Hughes and wife against the Galveston, Harrisburg & San Antonio Railway Company. Judgment for plaintiffs, and defendant appeals. Affirmed.

Beall & Kemp, for appellant. Millard Patterson and C. N. Buckler, for appellees.

FLY, J.

Appellees, the parents of W. E. Hughes, instituted this suit to recover of appellant damages resulting from the death of their son, who was killed while in the employment of appellant. The trial resulted in a verdict and judgment for appellees in the sum of $5,000.

The first and second assignments of error complain of the admission of testimony of Michael Marmon and Con Fox, in regard to the relative safety of blocked and unblocked switches, on the ground that they did not qualify themselves as experts. Marmon testified that he had been a railroad man for 27 years,— first as a section hand or trackman, next as section foreman, and last as flagman at a street crossing; that he had assisted in keeping tracks in repair in switch yards, but had not done much switching; that he had worked in yards where switches were blocked and unblocked; that the first named are safest, and, if properly blocked, it is not possible for a brakeman to get his foot fastened. Fox testified that he had been a section hand for 30 years, and was experienced in regard to the construction of frogs, switches, and yard arrangement. Both of the men had been for years in the service of railroads, and engaged in that branch of the railway service where they would be acquainted with the mode of construction of frogs and switches, and would be in a position to give sound opinions as to the relative safety of blocked and unblocked switches. Railway Co. v. Thompson, 75 Tex. 504, 12 S. W. 742.

The court charged the jury, among other things, as follows: "(5) If you believe from a preponderance of the testimony in this case that the deceased, William E. Hughes, while in the service of the defendant, and while in the discharge of his duty as switchman, and while attempting to couple cars in the yard of the defendant at El Paso, Texas, and that he was then in the exercise of reasonable care for his own safety, got his foot caught in an open space between the rails of the defendant's track, commonly called a `frog,' and that before he could extricate himself he was run upon and so injured by the moving cars that he died from such injury; and if you further believe from a preponderance of the testimony that said frog was unblocked at the point in the same where deceased's foot was caught, and that his foot being so caught in said frog, and his consequent injury and death, was due to the fact that said frog was unblocked, and that, under all the facts and circumstances in evidence in this case, said defendant was guilty of negligence, as that term is defined in the fourth paragraph of this charge, in allowing said frog to be and remain unblocked at the point where deceased's foot was caught, if caught, and that, by the exercise of ordinary care upon its part, defendant could and would have so blocked said frog as to have prevented such accident and injury; and if you further believe from the evidence that the plaintiffs are the father and mother of the said William E. Hughes, and that they have been damaged pecuniarily by his death, — then and in that event you should find for the plaintiffs. (6) Unless you believe from a preponderance of the testimony, and under all the facts and circumstances in evidence in the case, that the defendant was guilty of negligence in failing to block the frog mentioned in the testimony at the point where the foot of deceased was caught, if caught, then and in that event you should find for the defendant, so far as a failure to have said frog blocked is concerned. (7) The plaintiffs in this case have alleged in their petition that at the time William E. Hughes was employed as a switchman he was inexperienced, and had no knowledge that the frogs were not blocked, and did not know of the danger arising from unblocked frogs, and that defendant knew these facts, and failed to warn him of such danger; and they allege that such failure to so warn him was negligence. As to this issue you are instructed as follows: The general rule of law is that, when one person enters the services of another, he thereby assumes the risks, hazards, and dangers ordinarily incident to the service undertaken, but to this general rule there are exceptions,—as, for instance, where the servant is inexperienced as to the service undertaken, and ignorant of the hazards, risks, and dangers incident thereto; and if such hazards, risks, and dangers are not reasonably indicated by the nature of the work to be done, and if the master, knowing of such risks and hazards, and also knowing of the ignorance and inexperience of the servant, fails to warn him of such risks, hazards, and dangers, and the servant is injured while performing such service, then the master is liable. Now, in this case, if you believe from the evidence that, at the time the said Hughes was employed as a switchman by the defendant, he was inexperienced in the matter of coupling, uncoupling, and switching cars, and was ignorant of the danger, if any, arising from and incident to the matter of coupling and uncoupling cars in the yard of defendant where the frogs and switches were not blocked, and that the defendant knew at the time it employed the said Hughes as a switchman that he was inexperienced in the service of coupling and uncoupling cars, and that the defendant knew of the danger, or ought to have known of the danger. in coupling and uncoupling cars, arising from unblocked frogs, if it was attended with danger, then it was the duty of defendant to have warned the said Hughes against the danger, if any, arising from unblocked frogs and switches, and to have put him upon his guard against such danger, before putting him to work at switching, coupling, and uncoupling cars in its yards; and if you believe from the evidence that the said defendant did not so warn him and put him upon his guard, and he was in consequence killed while in the exercise of reasonable care on his part, then you should find for the plaintiffs. (8) If you believe from the evidence that, at the time the said William E. Hughes was employed as a switchman by the defendant, he was inexperienced in the service of switching cars, and you further believe from the evidence that he had knowledge of the fact that the frogs and switches in the defendant's yard were not blocked, you are instructed that such knowledge would not, as a matter of law, constitute knowledge to him of the danger arising from the fact that the frogs and switches were not blocked, if any such danger existed; but the fact as to whether or not he knew and appreciated the danger, if any, arising from unblocked frogs and switches, is a question of fact for you alone to determine, and it is your duty to determine it from all the evidence, facts, and circumstances in the case; and in determining that fact you would be authorized to take into consideration his inexperience in such...