Gulf, C. & S. F. Ry. Co. v. Finley

• Decision Date: 19 June 1895
• Citation: 32 S.W. 51
• Parties: GULF, C. & S. F. RY. CO. v. FINLEY.
• Court: Texas Court of Appeals

32 S.W. 51

GULF, C. & S. F. RY. CO. v. FINLEY.

Court of Civil Appeals of Texas.

June 19, 1895.

Appeal from district court, Dallas county; R. E. Burke, Judge.

Action by Frances M. Finley, for herself and children, against the Gulf, Colorado & Santa Fé Railway Company to recover damages for the death of her husband. From a judgment for plaintiff, defendant appeals. Reversed.

Alexander, Clark & Hall and J. W. Terry, for appellant. Wooten & Kimbrough, Chas. F. Clint, and T. T. Vander Hoeven, for appellee.

LIGHTFOOT, C. J.

This suit was brought by appellee, Mrs. Frances M. Finley, for herself and children, for damages for the death of her husband, who was a brakeman on the road of the defendant company, such death claimed to have been caused by the negligence of appellant, in its yards in East Dallas. It is alleged that deceased was a member of the train crew which brought the train into the yards, where it was turned over to the yard crew (an entirely distinct department of service) while the train crew went to get supper and to receive orders; that it was the business of the yard crew to do such switching as had to be done, and, when they had finished, to notify the conductor of the train crew, or to leave the train standing at or near where it had been left, and that it was customary for the train crew to assume that the yard crew was through with switching when the train was thus left standing still near the point where it was first left on being brought into the yard; that on this occasion the train crew got supper, and more than an hour had elapsed, being more than sufficient time for the yard crew to finish their work, when the conductor of the train crew, who was deceased's superior officer, ordered him to take the engine and couple it to the train; that deceased went in obedience to orders, and found the train standing still at the point where it had been stopped on first entering the yard, and apparently no further switching in progress, and no sign of the yard crew there; that he attempted to couple the engine to the front car, as was proper, and, owing to a defective and unsuitable coupling and link, had to go in between the car and engine; and while in this position the yard crew, without warning, ran the switch engine against the other end of the train, and killed the deceased. It was alleged that the coupling apparatus was unsafe and dangerous, and the pin "stuck"; that the conductor was negligent in sending deceased to make the coupling without using reasonable care to know that the train was ready; that the yard crew was negligent in leaving the train apparently made up and standing as if ready for the coupling of the engine, and in running the switch engine into the hind end of the train, without warning, and without care to see that no one was at the other end. And it was further alleged that the accident was also caused by the want of suitable and adequate rules to govern the movements of the yard crew in its relations to the train crew, and in regulating such work in the yards. After general and special demurrers and general answers, appellant pleaded contributory negligence, that the injury was the act of fellow servants, etc. There were a verdict and judgment for plaintiff for $12,000, from which this appeal is taken.

The seventh assignment of error is as follows: "The court erred in its charge, in this: That undertaking, as the court did, to instruct the jury upon the undisputed facts, it perverted the testimony of the conductor, who testified that he ordered Finley to `get the train when it was ready'; the court stating in its findings as to the evidence that the conductor directed Finley to go back to the yard with the engine, couple the same to the train and bring it down to what is known as the junction. * * * It was to the prejudice of defendant for the court to assume, as proven, the direction from the conductor to go and get the train, etc., whereas the evidence was that he directed them to get the train when `it was ready.'" There was a conflict in the evidence upon this point. It was shown that Finley was head brakeman of the train crew; that the train had been pulled into the East Dallas yards, and left by the train crew, while they took the engine and went down the track some distance for supper; that it was the duty of the yard crew to take charge of the train, and do such switching as might be necessary. After supper the conductor of the train gave the order to Finley, as head brakeman, under which he went back with the engine, accompanied by the engineer and another brakeman, and, while endeavoring to couple the engine to the train, Finley was killed. Some of the witnesses testified to the positive order from the conductor to Finley to go back to the yard with the engine, couple the same to the train, and bring it down to the junction; while the conductor testified that he gave the order for him to get the train when it was ready. It was error for the court in its charge to assume any material fact as established about which there was a controversy in the evidence. However strong the evidence may have been on the one side, and however weak on the other, the issue was for the jury to determine. In view of the issues as made up, such assumption may have influenced the jury in their verdict.

2. In its ninth assignment of error, appellant complains of the following charge of the court to the jury: "You are told that, under the evidence before you, the conductor of this train and Finley were not fellow servants; and if you find that Finley's injuries were caused by the negligence of the conductor of the regular train, in ordering Finley to take the engine, and couple it to the train, and bring it down to the junction, then the defendant company would be liable, unless you find from the evidence that Finley's own negligence at the time contributed to the injury." Appellant objects to this charge, "because it is upon the weight of the evidence in expressly construing such assumed fact to be negligence." This objection, taken in connection with the assignment above considered, presents a serious question. In the first place, the court charged the jury, as a fact, that the conductor did order Finley to take the engine, and couple it to the train, and bring it down to the junction. In the second place, it charged the jury that, if Finley's injuries were caused by the negligence of the conductor in giving such order, then the defendant would be liable, unless the injury was caused by Finley's contributory negligence. The charge does not, in express terms, construe the act of the conductor to be negligence, but it refers to such act of the conductor as negligence in such terms as were likely to mislead the jury. The jury are told that "if you find that Finley's injuries were caused by the negligence of the conductor of the regular train, in ordering Finley to take the engine," etc. The question as to whether it was an act of negligence for the conductor to give such order should have been clearly submitted to the jury for their determination, under all the facts and circumstances of the case.

3. Under appellant's tenth assignment of error, complaint is made of the following charge of the court below: "It was the duty of the defendant company to provide and enforce in its East Dallas yards reasonable and suitable rules and regulations for the government of its employés, and the conduct and management of its business in said yards; and if, from the evidence, you find and believe that the defendant company failed to do this, and, as a result of such failure, the deceased was injured, then the defendant company would be liable, unless you find and believe that Finley's own negligence contributed to the accident." The question of the adoption of reasonable rules and regulations by parties engaged in a complex business is fully discussed by Judge Brown in the case of Railway Co. v. Echols (Tex. Sup.) 27 S. W. 61, as follows: "Whether or not the evidence is sufficient to show a case in which the duty to make rules rested upon defendant is a question of law for the court. If the facts raised that issue, it should have been submitted to the jury; otherwise, it should not. When submitted to the jury, the reasonableness of such regulations is a question for the jury. The rule of law as to when it becomes the duty of the master to make rules for the safety of employés is well stated by Mr. Wood in his work on Master and Servant, thus: `If a master is engaged in a complex business, that requires definite regulations for the safety and protection of his employés, a failure to adopt proper rules, as well as laxity in their enforcement, is negligence per se, and the establishment of defective or imperfect rules is such negligence as renders the master responsible for all injuries resulting therefrom.' Wood, Mast. & S. § 403; 3 Wood, Ry. Law, § 382. This rule is quoted and approved in Reagan v. Railway Co., 93 Mo. 348, 6 S. W. 371, and in Morgan v. Iron Co. (N. Y. App.) 31 N. E. 234. This question has been before this court in the following cases: Railway Co. v. Watts, 63 Tex. 552; Railroad Co. v. Smith, 76 Tex. 618, 13 S. W. 562; and Railroad Co. v. Hall, 78 Tex. 658, 15 S. W. 108. In the first case this court said: `Where the employé is engaged in a dangerous service, it is the duty of the master to use all reasonable and necessary means to protect him against any superadded danger that might be reasonably expected to arise from extrinsic causes; * * * for, having placed its servants at labor upon these repair tracks, it was incumbent upon the company to use due care in protecting them against danger arising from these extrinsic causes.' In the other cases the court followed Railway Co. v. Watts. It will be seen that the rule laid down is substantially the same as quoted from Wood on Master and Servant. In Railway Co. v. Watts, 63 Tex. 552, the injured party was engaged in repairing cars...