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

• Decision Date: 31 January 1888
• Parties: GULF, C. & S. F. RY. CO. v. PETTIS.
• Court: Texas Supreme Court

7 S.W. 93

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

Supreme Court of Texas.

January 31, 1888.

Commissioners' decision. Appeal from district court, Galveston county; WILLIAM H. STEWART, Judge.

Samuel B. Pettis, a railroad engineer, who was injured while in pursuance of his occupation, in the employment of the Gulf, Colorado & Sante Fe Railroad Company, in a wreck on its road on the 9th day of November, 1884, instituted this suit against said company in the district court of Galveston county, on 29th day of April, 1885, for the recovery of damages occasioned by said injury; alleging that he was the engineer on defendant's engine No. 10, attached to train No. 18, and that the accident in which he was injured occurred about 6 o'clock in the morning, while the train was going at a rate of speed of about 18 miles an hour, at a point on defendant's road known as "Pritchard's Switch." That the injuries were of a permanent nature, and resulted to plaintiff from defendant's failure to keep its railroad track at the intersection of the switch with its main line in a safe and proper condition, and in failing to clear away the timber on each side of the track, it so obstructing the plaintiff's view at this point as to prevent him from seeing a danger signal which was exhibited ahead, and which would have enabled him to stop said train, and have avoided the accident. That the road-bed, where said switch joins the main line of the road, had been allowed by defendant to get out of repair, and became unsafe to such an extent as to render the passage over it of trains at this point extrahazardous and dangerous, and that the bad condition of the road at this point was known to defendant for more than a week prior to the accident. It is further alleged that plaintiff gave information to defendant of the dangerous condition of its track, and that it promised to immediately repair it. That plaintiff relied on the promise, and believed that the road-bed had been repaired, until the accident occurred, which he charges to be the result of defendant's negligence, as before stated. Damages laid at $10,000 actual, and $15,000 exemplary, Defendant answered by a general demurrer, contributory negligence on the part of plaintiff himself, and also that the negligence of his fellow-servants contributed to the injury, and that the injury was without fault or negligence on its part; also accord and satisfaction of any possible cause of action which plaintiff may have had against it by an agreement, which was set up, but need not be noticed, as no evidence was given in support of it. There was a judgment for the plaintiff for $2,500, from which this appeal is prosecuted.

The court among other things charged the jury as follows: "Those engaged in running the train of defendant immediately preceding plaintiff's were co-employes of plaintiff, and if you believe from the evidence that the switch at Pritchard's was torn up or rendered defective by such immediately preceding train, and that plaintiff's engine was thereby derailed, causing his injuries, and that such tearing of the track by such preceding train was so short that the track repairer could not reasonably be held to have knowledge thereof, then the defendant could not be held for damages to plaintiff which were the result of the switch so immediately previously torn up. Neither in such case would the company be liable for any negligence, if any, of the employe directed to carry the signal of danger to plaintiff." "The company would not be liable to damages by reason of rotten ties south of the place where plaintiff's engine was derailed, unless you believe from the evidence that rotten ties south of that point caused the derailment." The above paragraph of the charge is assigned for error, as being on the weight of the evidence. The main charge was very full and comprehensive as to the issues involved, and, in addition thereto, minute instructions at the request of defendant covering every phase of the evidence were given. The accident occurred at Pritchard's switch, about 6 o'clock A. M., in foggy weather. A freight train had preceded plaintiff's train from 40 minutes to an hour. The caboose of this train jumped the track somewhere near the switch; no one knew the exact point, and no one knew the cause, though there were several theories on the subject. The conductor and hind brakeman, who were riding in the caboose, became alarmed when it jumped the track, and jumped off; the balance of the crew did not discover that the caboose was off of the track until the train had run about a mile, when they stopped it, and started back in the direction of the switch. After going some distance, they met the conductor and brakeman, and the conductor sent a messenger down the road to signal the train that plaintiff was on. The messenger gave the signal, but not in time to prevent the accident, which was caused by the engine and train leaving the track at or near the switch. The messenger testified that he went back to the switch as quickly as he could, and did his best to give the danger signal in time to prevent the accident. There was evidence that the caboose of the train preceding plaintiff cut into the ties, but none showing it tore them up, or displaced them; this train and plaintiff's were coming from the north. There was evidence that there were rotten ties, and a good many of them, near the switch, where the track was torn up, and that it was not in good condition; and, on the other hand, there was evidence that it was in good condition, and that defendant had been diligent in keeping it in good repair. There was evidence that plaintiff was a careful, sober man, and that he had been in the employ of the defendant for a considerable time. He testified that he was running a mixed train at the time of the accident; had been running it at about 20 miles an hour, but on approaching the switch slowed up to about 18 miles an hour. The switch was not at a stopping-place, but had been put thereon account of a wood-yard. Trains were not required to stop, but slow up. There was a sharp curve in the road, near the switch, that required considerable speed of a heavy train like plaintiff's to round. That neither the time-cards nor any instructions required such trains to slow up to any certain number of miles per hour, but the instructions were general; and in this he was borne out by the other testimony in the case. There was evidence that the rate of speed that plaintiff was running was not unsafe; and there was evidence that he should have slowed up the train in approaching the switch to six miles an hour, and that, if he had done so, he could have stopped the train, and averted the accident. There was evidence that mixed trains were not allowed to run over 18 or 20 miles an hour, and there was evidence that they were allowed to run 25 miles an hour, and there...