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

• Decision Date: 24 June 1897
• Citation: 42 S.W. 255
• Parties: GALVESTON, H. & S. A. RY. CO. v. PITTS.<SMALL><SUP>1</SUP></SMALL>
• Court: Texas Court of Appeals

42 S.W. 255

GALVESTON, H. & S. A. RY. CO. v. PITTS.¹

Court of Civil Appeals of Texas.

June 24, 1897.

Error from district court, Harris county; S. H. Brashear, Judge.

Suit by E. L. Pitts against the Galveston, Harrisburg & San Antonio Railway Company. From a judgment in favor of plaintiff, defendant brings error. Affirmed.

Appellee brought this suit to recover of appellant damages for personal injury received while attempting, as one of appellant's brakemen, to uncouple cars, on the ground that the injury was caused by the negligence of appellant. The acts of negligence charged against appellant in the petition were that of the engineer in backing the train while plaintiff was between the cars, and that of appellant in using defective hose for its air brakes, and in allowing its track to be in an unsafe condition from the presence of rocks upon it. Each of these things was alleged to have contributed to the injury. Defendant pleaded (1) general denial; (2) that plaintiff's injury was caused by negligence of fellow servants; (3) contributory negligence of plaintiff in entering between the cars while they were in motion, in remaining between the cars after the train began to move, and after he discovered the defect in the air hose, and in failing to inspect, as it was his duty to do, the air hose while the train was stationary, or when it was made up; (4) assumption of risk resulting from condition of track by remaining in the service after knowing its condition. The trial was by jury, and a verdict and judgment were rendered for plaintiff for $4,300. At the trial, plaintiff abandoned all of the grounds upon which he sought recovery except the allegation of unsafe track, the uncontradicted evidence showing that there was no negligence on the part of the engineer, nor any on the part of defendant, with respect to the air hose. By special charges, given at the request of defendant, those alleged grounds of recovery were excluded from the case, and the decision was made to depend upon proof of negligence on defendant's part in permitting rock to be upon its track, rendering it unsafe for use by brakemen when performing their duties upon it. The evidence showed that at the station of D'Hanis there was a side track connected with the main track by two switches, one east and the other west of the station, and about a quarter of a mile apart. On the night when plaintiff was injured, the train on which he was employed as brakeman reached the station from the west, and it became necessary to take out of it some cars, which were to be left upon the siding. The train was therefore stopped upon the main track east of the east switch in order that the cars to be left might be uncoupled from the others, which was to be done by disconnecting the air hose between them, and then pulling the coupling pin. The customary way of doing this was for the brakeman to enter between the cars while they were stationary, and disconnect the hose, and for the engineer then to back the train slowly, in order that the coupling pin might be taken out. On this occasion Pitts went between the cars while they were still, and attempted to break the connection between the hose, but found them so fast that he could not do so. The engineer, as was usual, then backed the train, and Pitts moved with it five steps, with one foot inside and the other outside the rail, his purpose being to step from between the cars, cause the engineer to stop them, and procure something with which to force the hose apart. While thus moving, he stumbled upon a rock eight or ten inches in diameter, which was between the rails, and fell outwards, when the car passed over and broke his ankle. We state that Pitts entered between the cars while they were still, in accordance with the weight of the testimony and the verdict of the jury. There is some evidence tending to show that they were moving when he went in, which will be adverted to further on. We also state our finding as to the presence of the rock over which Pitts stumbled, and others of similar character, upon the track, because the jury must have so found. There is a sharp conflict of evidence on this point, which the jury have settled in favor of the plaintiff. Under the charges given, the jury also found that the presence of the stones rendered the track unreasonably dangerous for use by the defendant's employés in coupling and uncoupling cars, and that in permitting them to be and remain thus defendant was guilty of a want of ordinary care to keep its track in a reasonably safe condition, and was thus guilty of negligence, and this negligence proximately contributed to the injury which plaintiff sustained. We conclude, therefore, that each of these facts is shown by the evidence. In acting as he did, plaintiff was not guilty of any omission to use ordinary care for his own safety, and the charge that he was guilty of contributory negligence cannot be sustained. Nor does the evidence, in our opinion, justify the conclusion that plaintiff knew, or ought, by the use of ordinary care, such as was proper to his situation and employment, to have ascertained the fact that rocks such as rendered the track dangerous were upon it. In order to illustrate this contention of appellant, and the other points made in this appeal, it is proper to give, in outline, the character of the evidence introduced by it. The plaintiff was hurt on the night of November 28, 1894. In August of that year there were floods, which, without any fault of defendant, as it may be conceded, washed out its track at and near the east switch, and also west of the station for some distance. With due diligence, plaintiff in error sent its engineers and laborers to the point, and began the repair of its roadbed, which work was prosecuted, it is not denied, with all proper skill and dispatch. While this repairing was going on, there were issued what were called "slow orders," which indicated that this part of the track was unsafe, and that trains should be moved and handled over it slowly, and with corresponding care. By the first days of November, however, this work was considered completed, and the "slow orders" were taken up or countermanded, which indicated that the repairs were finished, and that the track was restored to proper condition. Upon one of the work trains by which material was hauled to build up the roadbed plaintiff was a brakeman, and he had, for part of the time the work was in progress, been in the neighborhood of the place where he afterwards was hurt. But he states that his station, when not on his train, was at the west switch, and that he was never nearer than 300 yards from the point of the injury. In this we do not find him contradicted. His duties were those of a brakeman when on the train, and flagman at the west switch while stationed there; and there is no evidence that he had anything to do with the work on the track, or inspecting the material that went into it, or that he at any time did so. After the completion of the work, he had passed, with his train, over this part of the road, but twice, and each time was in the caboose, and saw nothing of it. There was a mass of evidence to show the general character of the material which defendant used in building and ballasting its roadbed at this point and generally along its line, and the character of the road which was thus constructed. The material used was gravel, in which, sometimes, a stone too large to be left upon the track would be found, in which case, it is conceded, it was the proper course to remove it. The effect of this evidence may have been, and doubtless was, to show that the material used and the character of defendant's track were generally excellent, but this does not answer the case made by plaintiff that at the point in question stones so large as to make it dangerous for brakemen to walk upon it in coupling cars were left upon the road; and the fact that plaintiff knew that defendant used gravel in ballasting its track all along the line by no means proves that he knew and assumed the risk of the presence of stones such as his evidence shows were at the place in question. There is no evidence that such a condition existed at any other point, plaintiff's evidence tending to show simply that it existed where he was hurt, and defendant's evidence tending to show that it did not exist there, or at any other place on its road.

Baker, Botts, Baker & Lovett, for plaintiff in error. Wheeler & Rhodes and Henry F. Fisher, for defendant in error.

WILLIAMS, J. (after stating the facts).

It is urged as fundamental error that the case made by the evidence is different from that alleged in the petition, and hence the judgment should be reversed. The position, as we understand it, is that the allegations of the petition show that the proximate cause alleged for the injury is the negligence of the engineer and the defective air hose, and that, according to the allegations, the presence of the stone is but a condition of the occurrence. All of the three are charged as negligence, and all are alleged as proximate causes. The proof of the allegations with respect to either is sufficient. The unsafe track may be actionable negligence, though the other two acts or...