Galveston, H. & S. A. Ry. Co. v. Eubanks, 2110.

Citation42 S.W.2d 475
Decision Date15 October 1931
Docket NumberNo. 2110.,2110.
PartiesGALVESTON, H. & S. A. RY. CO. v. EUBANKS.
CourtCourt of Appeals of Texas

Appeal from District Court, Harris County; Ewing Boyd, Judge.

Action by T. S. Eubanks against the Galveston, Harrisburg & San Antonio Railway Company. From a judgment for plaintiff, the defendant appealed to the Galveston Court of Civil Appeals and the case was transferred, by order of the Supreme Court, to the Beaumont Court of Civil Appeals.

Reversed and remanded for new trial.

Baker, Botts, Andrews & Wharton, John T. Garrison, and Arterbury & Coolidge, all of Houston, for appellant.

Charles Murphy, of Houston, for appellee.

WALKER, J.

In this suit appellee was plaintiff below, and appellant was defendant. Appellee alleged that he was employed by appellant as brakeman on the 24th day of October, 1920, and was wrongfully discharged on the 25th day of October, 1923; that his employment was subject to the conditions of a contract between appellant and its employees of date 1913, whereby it was agreed that appellee would not be disciplined or discharged without proper cause, and whereby he had the right to appeal from the order of dismissal to appellant's higher officers; that after his discharge he prosecuted his appeal therefrom in the manner provided by the contract of 1913, but his contentions were denied, and appellant refused to reinstate him; he further alleged that in 1922 appellant and the four brotherhoods, the Brotherhood of Locomotive Engineers, the Order of Railway Conductors, the Brotherhood of Locomotive Firemen and Enginemen, the Brotherhood of Railroad Trainmen (appellee belonged to the last named brotherhood), entered into a contract by which appellee had the right to appeal from the final decision of appellant's higher officers, under the contract of 1913, to a "Train Service Board of Adjustment for the Western Region," created by the contract of 1922; that he did so appeal, and that his appeal was fully sustained by the board; that, notwithstanding the final orders of the board, appellant refused to reinstate him. His claim was for damages for time lost from the date of his discharge to the end of his life, as measured by the standard mortality tables.

The substance of appellant's answer was (a) the award of its higher officers was binding upon appellee, and (b) the award of the board, created by the contract of 1922, was void, because the board was without jurisdiction to hear the controversy.

The case was tried to a jury, but, upon conclusion of the evidence, the jury was discharged and judgment entered by the trial court in appellee's favor at the rate of $144 per month from the date of his discharge on October 25, 1923, to the date of the trial, the 18th day of June, 1930, and for twenty-nine years additional time, being appellee's life expectancy from the date of the trial, at the rate of $144 per month. However, on the second item, appellee prayed for only $30,000, and his recovery on that item was limited to that sum. On the first item he was awarded $11,481.20. Against this item, the court refused to allow appellant credit for appellee's earnings as a carpenter from the date of his dismissal to the date of trial. The appeal was duly perfected to the Galveston Court of Civil Appeals and transferred to this court by order of the Supreme Court.

The facts are as follows: Appellee was employed by appellant as brakeman, and discharged on the dates pleaded. The accident, resulting in appellee's discharge occurred on the 11th day of September, 1923, at Schulenburg, a station on appellant's line of railway. On that day, appellee was assigned to the rear end of local train No. 84, which left San Antonio at 7:55 a. m., and arrived at Schulenburg at 8:50 p. m., with nine loaded, and two empty, cars. The usual stop was made on the main track on a 1.22 per cent. ascending grade for the purpose of doing switching on the local yard. The head brakeman and the switch swing brakeman were riding the head end of the train. The conductor and appellee were riding in the caboose. After the train stopped, appellee immediately went back with stop signals to protect the rear end of his train. After the train stopped, the conductor left the caboose and walked towards the head end of the train. After appellee left the train, the engine and three cars were cut loose from the other cars. The engineer, his fireman, and the two other brakemen rode the engine and the three cars that had been cut from the train to the compress track for switching purposes. When appellee's train No. 84 stopped at Schulenburg, train No. 246, a superior train, traveling closely behind appellee's train and in the same direction, was past due at Schulenburg, which facts appellee knew. During the progress of the switching work, and after about twenty minutes delay, the engine returned from the compress to the main track with a cut of cars, and backed up against the cars left standing on the main track. Because the coupling failed to make, the rear portion of the train was started down grade, running a distance of about two miles before coming to a stop. The runaway would have been avoided had a sufficient number of hand brakes been set on the rear end of the train.

It was shown without dispute that appellee left his train without setting any hand brakes on the rear end thereof. The charge upon which he was dismissed was worded as follows: "Failing to set hand brakes on rear portion of his train which was left standing on an ascending grade, and responsibility for part of his train getting away at Schulenburg, Texas, September 11, 1923."

Article 32 of the 1913 contract is as follows: "No trainman will be disciplined or discharged without proper cause, and if a trainman accepts his time when discharged, he does not forfeit his right to make a grievance, within the prescribed limit. Trainman taken out of the service or otherwise disciplined shall be given a hearing by proper division officers as early as possible, after request in writing, and decision will be promptly rendered. Trainman will have the right to be accompanied or represented by one or more trainmen in the Company's employ or the regular Committee of the Organization, and have the right to appeal to higher officers of the Company, in case decision is unsatisfactory. Notice of appeal must be given within sixty days after decision is rendered. Officers to whom cases are appealed will give a hearing and decision as early as possible. If dismissal is found unjust, trainman will be reinstated and paid for all time lost. Trainman charged with offenses involving either discipline or dismissal will be advised of the offense in writing, and all parties concerned may be present at the investigation, if the accused so desires. In so far as it can be done legally, transportation over the lines of these Companies will be furnished employees upon request, for the purpose of securing evidence concerning grievances, or to reach the General Officials."

Appellant's operating rules, to which appellee was subject, material to this case, are as follows:

"Rule 47. When a freight train is standing on a grade where it is necessary to keep the brakes applied, hand brakes must be set and straight air brake applied on locomotive or locomotives, then the automatic brake released so as to have train charged to maximum brake pipe pressure before starting. When train is standing on descending grade, hand brakes must be set on head end, and when on ascending grade, hand brakes must be set on rear end."

"Rule 99. When a train stops under circumstances in which it may be overtaken by another train, the flagman must go back immediately with flagman's signals a sufficient distance to insure full protection. One-fourth of a mile from the rear of the train, he will place one torpedo on the rail; continuing back one-half mile from the rear of the train, he will place two torpedoes on the rail, two rail lengths apart. He may then return to the single torpedo, where he must remain until relieved by another flagman or is recalled by the whistle of his engine. When recalled if he does not see or hear an approaching train, the single torpedo will be removed, and not before. By night, or by day when conditions warrant, a lighted fusee will be displayed to protect his train while returning."

"Rule 843. On grades when engines are cut off at stations to do work or at any stop of unusual length, the air must be released and a sufficient number of hand brakes set to hold the train. Both conductor and enginemen will be held responsible for compliance with this rule."

Appellee was discharged for failing to obey rule No. 843, and duly prosecuted his appeal from the order of discharge to appellant's "higher officers," under the procedure provided for by article 32, who refused to sustain his grievance. He then perfected his appeal to the board, as created by the 1922 contract. The material portions of that contract are as follows:

"1. That all disputes growing out of personal grievances or out of the interpretation or application of the schedules, agreements or practices now, or hereafter established on the railroad signatory hereto, which cannot be adjusted by direct conference between representatives of the individual railroad and its respective employees shall be disposed of in the following manner.

"2. There shall be created as soon as practicable a Railroad Board of Adjustment to be known as `Train Service Board of Adjustment for the Western Region' (hereinafter referred to as the Board) to consist of eight members; four to be selected by the said railroads and one each by the chief executive officer of each of the four organizations of employees, hereinbefore named.

"17. No dispute shall be considered by the Board except those with respect to matters covered by Section 1 of this agreement and which have arisen out of...

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