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

• Court: Texas Court of Appeals
• Writing for the Court: Bookhout
• Citation: Gulf, C. & S. F. Ry. Co. v. Warner, 54 S.W. 1064 (Tex. App. 1899)
• Decision Date: 04 November 1899
• Parties: GULF, C. & S. F. RY. CO. v. WARNER.<SMALL><SUP>1</SUP></SMALL>

54 S.W. 1064

GULF, C. & S. F. RY. CO. v. WARNER.¹

Court of Civil Appeals of Texas.

November 4, 1899.

Appeal from district court, Johnson county; W. C. Wear, Special Judge.

Action by Charles C. Warner against the Gulf, Colorado & Santa Fé Railway Company. From a judgment for plaintiff for $10,000, defendant appeals. Affirmed.

J. W. Terry and Ramsey, Brown & Odell, for appellant. Poindexter & Padelford, for appellee.

BOOKHOUT, J.

This is a suit by Charles C. Warner against the Gulf, Colorado & Santa Fé Railway Company to recover damages for personal injuries sustained by him. Plaintiff in his petition, among other things, charges that the defendant had, prior to October 18, 1893, four branches of its road centering in Cleburne, and in the conduct of its business it had a roundhouse and switch yard in Cleburne that the main switch yard was situated west and adjoining the roundhouse, where most of the defendant's switching was done; that another switch track ran east, and rather north, of the roundhouse, to the stock yards, and was known as "Stock Yard Track No. 1"; that two other stock tracks led off from stock track No. 1 in a northern direction, said tracks being known as "Switch Tracks Nos. 2 and 3"; that where No. 2 intersects and leads off from No. 1, on the inside of the east rail of No. 1, there was situated a dangerous and unblocked guard rail; that track No. 1, near and opposite the place where said guard rail was situated, was unfilled and ungraded, and that left a hole or depression in defendant's said track near and opposite this guard rail, all of which rendered defendant's switch track at said place dangerous for switchmen in coupling and uncoupling cars; that prior to October 18, 1893, plaintiff was employed by defendant as switchman in said switch yard, and was working in said capacity when injured; that the switch crew with which defendant was working at such time consisted of a foreman, a fireman, an engineer, and three switchmen; that this switch crew was on this day ordered to leave the main switch yard, and go out upon switch track No. 1, and get some stock cars which were standing on No. 2; that, in order to get out upon No. 2, they had to push certain other box cars, which were standing on No. 1, beyond No. 2, and that for this purpose the engine was attached to said cars, which were standing on No. 1, and was set in motion, and was slowly pushed northward on No. 1; that just as said cars were slowly passing said place where No. 1 intersects No. 2, and when the furthest end of the car next to the engine was a little south of said place where said dangerous guard rail and said ungraded and dangerous track was situated, plaintiff was opposite and near said place watching said foreman of said switch crew and vice principal of the defendant, in order, as was his duty, to obey all signals and orders, and to execute all orders, given by said foreman; that just as said north end of said first car next to the engine was approaching said guard rail, going slowly north, the plaintiff received a signal and order from said foreman to at once cut said box cars, all except the one next to the engine, allowing those cut loose to be pushed north, and to be left standing north of the place where No. 2 connects with No. 1; that it was plaintiff's duty to obey said signal and order, and, in obedience to said signal, plaintiff approached the track upon which said cars were being pushed, upon the east side thereof, got upon the outside of the rails, and there attempted to cut said cars as ordered, and was walking along outside of said track, just outside of said rails, looking at the coupling he was about to make, and, while in the act of reaching over to uncouple said cars, he came to that part of the track which had not been properly graded and filled up, and where said hole and depression had been negligently left by the defendant, and by reason of said defect he was caused to stumble, and was about to be precipitated between the cars, and that, in order to regain his equilibrium, he was compelled to place his left foot over between the rails to keep out of the way of the moving cars, and in making the step northward his foot was caught in the unblocked guard rail, and became tightly wedged in between said guard rail and the main rail of track No. 1, and became so securely fastened therein that he was unable to pull the same out, and unable to extricate himself therefrom; that, seeing his danger, he threw all of his body, except his said foot and leg, outside of said east rail of said track, and the wheels of the car next to said engine were caused to pass over plaintiff's left foot, ankle, knee, and leg, and to drag the same beneath the wheels, along said track, and crushed and tore all the flesh from plaintiff's said leg from his foot to above his knee, thereby completely separating and severing the lower from the upper part of his said leg at the knee joint, all of which necessitated the amputation of his leg midway between the knee and hip joint; that the said injury was caused by the negligence of the defendant, plaintiff laying his damages at $25 000. Defendant answered by general denial, and special plea that the condition of the track complained of was known, or ought to have been known, to plaintiff prior to the accident, and that he assumed the risk, and was guilty of contributory negligence. There was a trial, and verdict and judgment for plaintiff, and defendant has prosecuted a writ of error to this court.

Findings of Fact.

Plaintiff was in the employ of the defendant in the capacity of switchman in its switch yards in Cleburne on or about the 18th day of October, 1893, when he was injured. The defendant, on and prior to said day and date, had four lines of its road centering in Cleburne, and, for the purpose of conducting its business, had a roundhouse and a switch yard in Cleburne. The defendant's main or regular switch yard was situated west of the roundhouse, and defendant also had stock switches Nos. 1, 2, and 3, which ran east of the roundhouse, and were known as its "Outside Yard." The defendant all the time employed one regular switch crew, and part of the time employed two switch crews. The regular crew was called the "Inside Crew," and the irregular crew was called the "Outside Crew." The regular or inside crew did its business principally on the regular switch yard west of the roundhouse. The plaintiff, Warner, belonged to, and worked with, the regular or inside crew. On and prior to October 18, 1893, when plaintiff was injured, the switch yards of the defendant which lay west of the roundhouse were graded and surfaced. The plaintiff was injured while working in the outside yard, on switch track No. 1. That portion of defendant's yard, on stock track No. 1 where plaintiff was injured, was, at and before the injury, in a bad condition, and dangerous and unsafe. The track where plaintiff was injured at the time of the injury was not surfaced or graded. It had been filled in the center of the track, but the filling sloped down from the center, and at the rail, and from there to the end of the ties, there was no filling or surfacing. There was a depression or hole in the track from six to eight inches deep with reference to the surface of the ground. The plaintiff did not know of said hole, and of the dangerous condition of the track, at the time of the accident. The plaintiff was injured by reason of the defective condition of the track. He had just gotten off the engine, and was walking along the side of the track, watching the foreman, who was on the top of the box car, some distance north of him. The plaintiff's attention was directed upon the foreman, to catch whatever signal or order the foreman should give him. When the signal was given, the plaintiff's attention was called to the duty he was about to perform, and without noticing the track, and believing that everything was safe, he stepped upon the track, and, in attempting to uncouple the car, stepped into the hole or depression, causing him to lose his balance, to maintain which his left foot was thrown over between the rails, and was caught between the guard rail and main east rail of No. 1. He was run over by the car wheel, and his foot and leg clear up above his knee was ground to pieces, and the lower portion of his leg severed from the upper, above his knee. He received two severe injuries on his shoulders, by having them dragged and bumped over the end of the cross-ties. Plaintiff was damaged in the amount found by the jury. Plaintiff was not guilty of contributory negligence, nor did the plaintiff, in his employment and duties, assume the risk and danger of the defects in the track which caused the injury.

Conclusions of Law.

Plaintiff in error, in its first assignment of error, complains that the court below erred in overruling its motion for a new trial, for the reason that the verdict of the jury is...