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

• Decision Date: 21 October 1914
• Docket Number: (No. 5322.)
• Citation: 170 S.W. 835
• Parties: GALVESTON, H. & S. A. RY. CO. v. DICKENS.
• Court: Texas Court of Appeals

170 S.W. 835

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

(No. 5322.)

Court of Civil Appeals of Texas. San Antonio.

October 21, 1914.

Rehearing Denied November 18, 1914.

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

Action by C. W. Dickens 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. C. C. Harris and M. J. Arnold, both of San Antonio, for appellee.

CARL, J.

Appellee, C. W. Dickens, sued appellant, Galveston, Harrisburg & San Antonio Railway Company, for damages in the sum of $30,000 for personal injuries alleged to have been inflicted upon him by and on account of the negligence of the appellant. Appellee alleged that about January 1, 1913, while in the employ of appellant, and in the discharge of his duties, in what is known as the "East Yards" in San Antonio, it became necessary for him to go upon a box car of appellant and ascend to the top of same, and, substantially, that when he reached the top or near the top a handhold pulled out and gave way on account of its defective condition, and as a result he was precipitated to the ground causing his injuries, which are alleged to be serious and permanent. It is alleged that the car was a bad-order car and was being moved to the switch known as "Old Six" for repairs; that appellee knew it was a bad-order car, but did not know the particular defect; that where handholds were used by such switchmen, it was a custom of the company to mark such defects with chalk marks so as to indicate to the servant, at the place, the defect, and that the railway was negligent in failing so to mark the defective handhold in question; that it was not within the line of his duty to know, and he did not know, of any defects, even where the car had a bad-order card on it, unless they were marked with chalk marks at the particular place where such defect existed; and that the railway was thereby negligent in failing to furnish him a reasonably safe place to work. It was further alleged that it was a custom of the appellant, where a defective handhold was found, not only to mark same, but to pull one end of it out; that the wood where the handhold was fastened was rotten and defective, which caused the screws to give way and pull out, as aforesaid. Appellant demurred generally, pleaded knowledge on part of appellee that it was a bad-order car, and that a bad-order tag was placed thereon, which was notice to appellee of the condition of same; that at the time the alleged accident occurred, the car was being moved to the repair track where it could be further inspected and repaired, and that, as a switchman, it was appellee's duty, in view of his knowledge of the bad order, to take the precaution to make such inspection as would protect himself from accident, and he failed so to do. Assumed risk and contributory negligence on part of appellee were also pleaded. The verdict of the jury was in favor of Dickens for the sum of $9,500, and from judgment based thereon this appeal is taken.

The undisputed evidence shows that the car from which Dickens fell was a bad-order car and was being, at that time, taken to a switch for repairs. Appellee knew it was in bad order and had been taken out of service. He had seen the small tag on the side of the car, but did not read it, and did not know what was on the card, and did not know that the handhold where he was injured was defective. Dickens testified that it was not his duty to read bad-order tags, since they were for the guidance of car repairers; and it was shown to be a custom, upon which he relied, to put chalk marks on the car near defective handholds, etc., used by brakemen and switchmen, to indicate at the place the particular defect. It was also customary to pull out and bend back a loose or defective handhold, so that it could not be used, and this was not done with the one that caused the injury. The bad-order tag on this car was not introduced in evidence, and there is no testimony to show what was on the same, or what a reading of it would have disclosed. The accident was caused by a handhold on or near the top of the car giving way because the wood where it was screwed down was rotten and would not hold. He fell 12 or 14 feet to the ground and sustained injuries as found by the jury.

Appellant contends that the fact that it was a bad-order car, and appellee knew that it was such, and proceeded to his injury with such knowledge, would make it a case of assumed risk and bar his right of recovery. He did know in a general way that this was a bad-order car, and that it had been withdrawn from service. But he did not know what the particular defect was. Nor can this court say that he would have been enlightened as to that by reading the tag. For some reason appellant has not seen fit to introduce the tag, nor has any effort been made to show what information it contained. The evidence of the plaintiff below that it was not his duty to read and know...