"This suit, which is now pending before us on motion for rehearing, was brought by Isabella Hill, for herself and as next friend of her two minor children, to recover of the defendant damages for the alleged negligent killing of her husband, J. H. Hill. Judgment was for plaintiff in the court below, and the defendant railway company brought the cause here by writ of error. We set out fully the facts found by us from the record, because such a statement is necessary to a comprehension of the questions hereinafter propounded, in their relation to the entire case:
"Plaintiffs allege as a basis for recovery that the deceased was a switchman in the employ of defendant, and was, at the date of the accident which caused his death, engaged, with other members of a switching crew, in doing some switching in the yards at Galveston; that it was the purpose of those thus engaged to kick the end car of a string of cars they were handling into a side track, without following it in with the rest of the train; that, in order to do this, the train, as it backed in the direction of the switch, was to be slowed down to a slow rate of speed, whereupon it became the duty of deceased to uncouple the end car; that, in doing so, it was proper for no one to give the kick signal except deceased; that he undertook to uncouple the cars, and while doing so his fellow switchman, without warning him, negligently gave the kick signal, in response to which the speed of the train was suddenly and violently increased, whereby he was knocked down, run over by the cars, and killed; that the signal which caused his death was given by one Fewell, and that his coemployés were negligent in taking the signal from Fewell, but should have waited until the deceased had signaled that the cut had been safely made. In addition to the general denial, the defendant pleaded specially that deceased's injuries and death resulted from one of the risks ordinarily incident to his employment; pleaded his contract of employment, in which he acknowledged himself familiar with defendant's rules; agreed to look to his coemployés for all necessary information looking to his safety; agreed that in every case of doubt he would take the safest course; that he would avoid taking risks, would familiarize himself with the rules, conform his acts to their requirements, and report all infringements thereof. Such of the rules as are supposed to be applicable are pleaded, but it is not necessary to set them out in this connection. It was further averred in defense that the kicking of the car had been prearranged, and the programme fully understood by the deceased; that he knew it would be his duty to uncouple the car, that same would be kicked, and that it was his duty to give the kick signal before uncoupling, or see that it was given; that the signal that was given was usual and customary, and one that deceased knew would be given in doing the work; that such was the usual and customary way of doing the work in the Galveston yards, wherefore it is alleged the danger therefrom was one of the ordinary risks of the employment; that the cars were equipped with automatic couplers, which rendered it unnecessary for him to go in between the cars, or to expose any part of his body between them; and that if he did so he assumed the risk. It was also charged that he was guilty of contributory negligence in exposing himself between the cars without either having given the signal, or knowing it had been given; that, though expressly warned by the rules to look out for signals, take no risks, etc., he failed to take these precautions, and therefore was the cause of his own injury.
"J. H. Hill, the husband of the plaintiff in this case, was on March 9, 1900, an employé of defendant, in the capacity of switchman, and between five and six o'clock on the afternoon of the day named, while engaged in switching in the yards of defendant at Galveston, he was run over and killed by defendant's train. At the time of the accident he was engaged in switching, and was, as expressed by the witnesses, `working in the field.' The crew had been out in the west yards, near the bay bridge, in the city of Galveston, and had come back from the west with a string of 25 or 30 cars, — mostly box cars; the engine being at the rear end of the train, backing it up. The front car of the train as it backed was a flat car, loaded with lumber, and the next two cars were cinder cars. Deceased rode from the west yards to the middle yards, near Forty-Second street, on the front end of the flat car, as they backed up. The other members of the crew were John McCarty, foreman; C. A. Hooks, another switchman; Chris. Miller, engineer; and Thomas Gillam, the fireman. In coming from the west yards, the train of cars was propelled at a speed of about ten miles an hour, but, when it neared a point designated as `Fogarty Switch,' it was slowed down to a
speed of two or three miles an hour for the purpose of allowing Hill to alight, throw the switch for `rip track No. 2,' on which it was intended to place the end car, and to uncouple the car so it could be kicked in. Fewell, the night yard master, was near the switch, and receiving from McCarty a signal as to what was intended, threw the switch, and Hill proceeded at once to uncouple the car. McCarty saw him approach the point in the train where the uncoupling was to be made, and reach out as if to take hold of the uncoupling lever, but at that point he ceased to be in view of McCarty. No witness testifies that the acts of Hill were seen after that, though the track at that point was straight. Fewell, who was then standing at the switch, and had thrown it for the side track, and who was a considerable distance from Hill (some of the witnesses placing him as much as 75 yards away), gave the kick signal. This was received by McCarty, who transmitted it to the engineer, who obeyed it without knowing the exact position of Hill. In response to the kick signal, the speed of the train was increased from two or three to seven or eight miles an hour. It was at once discovered that Hill was under the train, and Fewell gave the emergency stop signal. The train was promptly stopped. The car was in fact uncoupled, and, as a result of the response to the kick signal and the increased speed of the train, rolled into the side track as intended. Hill was found between the rails, with his arm and leg crushed, — two of the cars having passed over him, — and he died a few hours later. He was a sober, experienced, and efficient switchman, and had been at work in defendant's yards at Galveston for several years. No one saw Hill fall, and there is no direct testimony as to how he fell, his position just before the fall, or what caused it. No one testifies whether he went in between the cars wholly or...
