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

• Decision Date: 11 June 1924
• Docket Number: (No. 6770.)
• Citation: 264 S.W. 595
• Parties: GULF, C. & S. F. RY. CO. v. LOCKER.
• Court: Texas Court of Appeals

264 S.W. 595

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

(No. 6770.)

Court of Civil Appeals of Texas. Austin.

June 11, 1924.

Rehearing Denied July 5, 1924.

Appeal from District Court, Bell County; Lewis H. Jones, Judge.

Action by H. M. Locker against the Gulf, Colorado & Santa Fé Railway Company. From a judgment for plaintiff, defendant appeals. Affirmed.

W. W. Hair, of Temple, Terry, Cavin & Mills, of Galveston, and Lee, Lomax & Wren, of Fort Worth, for appellant.

Walker Saulsbury and Winbourn Pearce, both of Temple, for appellee.

BLAIR, J.

Appellee sued appellant to recover damages for personal injuries alleged to have been sustained while engaged in the performance of his duties incident to the coupling of cars for appellant. Appellee, a brakeman on a freight train in the employ of appellant, engaged at the time of his injuries in handling interstate commerce, alleged that the appellant had failed to equip the cars he was handling with couplers coupling automatically by impact, in consequence of which he was injured, and that the appellant, at the time of the injury, was hauling and using the said cars not so equipped with couplers coupling automatically by impact.

Appellant answered, denying generally appellee's allegations for damages, and specifically pleaded assumed risk on the part of appellee in bar of a recovery, or to reduce the damages, and further pleaded specific rules and regulations which it charged appellee with violating at the time of his injury, as the sole cause of the injuries, and also pleaded contributory negligence.

The cause was tried to a jury upon five special issues. Questions 1 and 2, and the jury's answers thereto, are as follows:

"(1) Do you find from a preponderance of the evidence that the cars which the plaintiff was attempting to couple had failed to couple automatically by impact?" Answer: "Yes."

"(2) Do you find from a preponderance of the evidence that such failure of the cars to couple automatically by impact, if they did fail to so couple by impact, and as a proximate result thereof such failure contributed in whole or in part to plaintiff's injuries, if any, and that but for such failure such injuries would not have occurred?" Answer: "Yes."

The court instructed the jury that, if they answered "Yes" to the first two questions, they need not answer questions 3 and 4. In answer to question No. 5, relating to the amount of damages, the jury answered that appellee had been damaged $15,000 by reason of his injury. Judgment was rendered for this amount upon motion of appellee; from which appellant has duly perfected its appeal.

Findings of Fact.

The proof showed that the crew handling the freight train in question went on a side track to pick up a string of five or six cars. The side track was on a decided curve, and the conductor, appellee, and another brakeman were on the fireman's side of the engine on the ground, as the engineer, because of the curve, could not see the signals. The conductor made the coupling on the two cars in question; that is, he signaled the engine to "come ahead" and to couple into the standing car with the one it was pushing. The cars hit together and fit right, and apparently the coupling was made. Appellee was standing by where he could see the coupling, and after it had apparently made got on the cars to release the hand brakes. The conductor went down three or four cars to make another coupling, and to cut out a bunk car they did not wish to take. After uncoupling the bunk car the conductor gave the signal for the engine to back out with the string of cars. The engine proceeded to do so, and the two cars in question came apart — that is, one of the cars went with the engine while the other remained stationary, and after a space of about 12 feet had been reached between the two cars the engine was stopped. As to what then happened, we quote the following from appellee's testimony:

"The next thing I saw was a space between the cars where the conductor tried to make the coupling. I noticed this space where the cars had coupled, and I went around and I noticed that the coupler was standing open; this was on the car that was attached to string attached to the engine, the cars that had been moved back. I noticed the coupler to that car was open, and I knew there was something wrong with it. I saw there was something wrong with the coupler or it would have remained coupled, and I had to go in to see what was the trouble. And after I got to the coupler I saw that the knuckle lock didn't drop, and I closed the knuckle with my hand, and it still would not drop. I closed the coupler. No, sir; that is not what you call a knuckle pin; there is a lock that drops down behind the knuckle after it closes. It was the knuckle lock that did not drop. I worked at it several times and finally I got it to drop, and after I saw it was locked, I was afraid to risk it, to leave it open, it wasn't working good, and I went to the other car and opened the knuckle on the other car. I didn't think I could depend on the other one I had just adjusted, and I closed it and stepped over and opened the knuckle on the other car. As I opened the knuckle on the other car I gave him the come ahead signal, and as I gave him the signal I started to step out, and I backed into some rails that were extending over the end of the car. I did not step out; the rails caught in my clothes. If I had not been caught I would have had time to have stepped out. When I went in between these cars they were standing still. When I was doing the adjusting on the first car, the coupler, the one that the knuckle would not drop, the cars were standing still. When I passed over to the other coupler and opened it, the cars were standing still. They stood still until I gave the signal to come ahead. No, sir; I didn't go back and get hold of that lever at the end of the car and try to make it work. You can't make it work with a lever. I did not try it with a lever. The lever is to open it. No, sir, you cannot push it back with a lever. It has got to have an impact to push it back."

The car being coupled was loaded with steel rails to be used by the appellant on its tracks. One rail was extending out over the end of the car about 13 inches; this caught appellee in the side, and pulling on it trying to get loose turned him around facing the engine, with the end of the rail to his back and the angle iron on the other car under his ribs, and as the cars came together he was between these and was mashed. The space between the rail and the angle iron was estimated to be 4 inches. Appellee weighed 198 pounds. The witness who measured the space between the ends of the cars as they were when appellee was injured, without reference to the rail and angle iron, testified:

"On the inside of the curve, the cars were spaced 13 inches apart and on the outside of the curve 28 inches apart. A man standing in there would have 13 inches space to stand in on one side and on the other 28 inches."

The cars apparently coupled, and after the coupling was released the engine moved forward and appellee was taken out unconscious. Other facts will be discussed in the opinion, as the sufficiency of the evidence as a matter of law to establish liability is a main contention on this appeal.

Opinion.

Appellant presents fifty-five propositions, three or four of which are briefed. They in fact resolve themselves into a very few questions for our determination, which we will discuss without referring to the specific propositions of the brief.

It is first contended that under the undisputed testimony there is no basis, or warrant or support for a finding that the coupler in question did not comply with the federal statute relating thereto. The jury found in response to question 1 that the coupler "failed to couple automatically by impact." The statute makes it unlawful for a carrier, engaged as appellant was, to haul or permit to be hauled any car "not equipped with couplers coupling automatically by impact, and which cannot be uncoupled without the necessity of men going between the ends of cars." One point insisted upon in this connection is that the jury's finding that the coupler "failed to couple automatically by impact" was not the test; but that the question at issue was whether appellant had violated the statute by a failure to equip its cars with couplers coupling automatically by impact. Appellee insists that if such were an issue of fact appellant cannot here complain, since having failed to request the submission of the issue to the jury, under the provisions of article 1985, R. S., such fact will be presumed to have been found by the trial judge in support of his judgment. We agree with this contention, if the question raised is one of fact that could have been submitted to the jury. Moore v. Pierson, 100 Tex. 113, 94 S. W. 1132. However, we think the issue submitted was the test fixing appellant's liability under the facts of this case. The question here was not a failure to equip, but, Did the couplers with which the cars were equipped fail to couple automatically by impact, causing the injury? Having this fact determined, the court under the statute and decisions must hold that the statute has been violated. In other words, the statute in its broad sense is not only violated because of a failure to equip the drawhead of a car with automatic couplers, but it is also violated when those couplers fail to couple automatically by impact. The testimony is undisputed that appellant had equipped the cars in question with automatic couplers of a standard make. It is also undisputed that they failed to couple automatically by impact one time. If there was any question as to whether there was impact, that was determined by the jury, for their answer that the cars "failed to couple automatically by impact" necessarily implied that there was impact. Cars cannot be said to couple automatically by impact where they are brought...