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

• Decision Date: 20 June 1896
• Citation: 37 S.W. 659
• Parties: GULF, C. & S. F. RY. CO. v. MAYO et al.
• Court: Texas Court of Appeals

37 S.W. 659

GULF, C. & S. F. RY. CO. v. MAYO et al.

Court of Civil Appeals of Texas.

June 20, 1896.

Appeal from district court, Johnson county; J. M. Hall, Judge.

Action by W. H. Mayo and Mary Mayo against the Gulf, Colorado & Santa Fé Railway Company. Judgment for plaintiffs, and defendant appeals. Reversed.

The following statement of the case by appellant, with some slight additions, and also the statement of the evidence, are both concurred in by appellees as correct, and we adopt the same:

This is a suit by appellees for damages for the death of their son, Harvey A. Mayo, on April 30, 1895. Verdict and judgment were rendered for the plaintiffs for $2,500. Defendant's motion for a new trial being overruled, appeal has been duly prosecuted to this court.

The petition shows that Harvey A. Mayo was killed while attempting to couple two cars at Cleburne, Tex., on February 22, 1893, on account of the fact that the cars came too close together, crushing him between them. It charges that the cause of the cars so crowding together was the fact that the draft timbers of one of the cars, placed on each side of the drawhead for the purpose of keeping the drawhead in proper position, were broken, and the carrier iron, which extended from one draft timber to the other, for the purpose of supporting and holding up the drawhead in its proper place, was loose and out of repair, and also the lug strap that was supporting part of the drawhead was loose and out of repair, by reason of which defects, when the other cars struck the drawhead of such car, the same was forced in, permitting the two cars to come so close together as to crush the said Mayo. The petition alleges that such defects existed by reason of the negligence of the defendant. It was also alleged that the agents and servants of appellant, other than the deceased, knew of the damaged condition of the drawhead in question before the injury, and that they carelessly and negligently permitted the defective car to remain on the track, and negligently failed to advise him of its condition, and permitted the same to be used for the purpose of hauling sand from one track to another; that appellant had a machine shop in its yards at Cleburne for the purpose of repairing defective cars and machinery. Defendant answered by general denial and the following special answer: "And, for further answer, defendant says that, when said Mayo accepted employment from it as a switchman, it became a part and parcel of his duty to couple and uncouple cars out of repair, as well as other cars; and, by accepting its employment as a switchman, he assumed all the risks incident thereto. And defendant avers that it has its car inspectors, whose duty it is to inspect each and every car that comes into its yards; and if they find any car out of repair, and dangerous to handle, it is the duty of said inspectors to tack a red card on said car, with the words `Bad Order' printed on said card, which card is notice to all employés, including especially switchmen, that there is something wrong with the same, and it is then their duty to handle said car in a cautious manner; and that it is the duty of all switchmen, before they go to handle a car that has been brought into the yard, to notice said car to see if there is such a card on same, and, if there is, then it is their duty to look out for the defect, and such is the rule this defendant has adopted to notify its switchmen of defective cars, so that they may be able to protect themselves against injuries; and that this was the rule of defendant when said Mayo went into its service; and that said Mayo had full knowledge of said rule. And defendant avers that the said defective car mentioned in plaintiffs' petition had placed on it one of said cards, with the `Bad Order' printed thereon; and that said Mayo knew that fact before he attempted to couple said car, or could have known it by the use of ordinary care. The defendant avers that said Mayo knew of said defect in said car, or could have known of such by the use of ordinary care; and that it was through his own carelessness and rashness that he was caught between the said two cars, and crushed to death, and of this it is ready to verify."

Plaintiffs' Evidence.

Mary Mayo testified: "I have lived in Johnson county, Missouri, for twenty years. I am the wife of W. H. Mayo, and mother of Harvey A. Mayo. He was twenty-two years old at his death, and unmarried. My age is forty-three years. Harvey's health was good. He was able to perform hard labor, and was of industrious habits. He had no disease that I know of." She testified to facts showing longevity of various members of her family, which indicated that, in her opinion, Harvey might have lived to an old age. "Harvey was at home about two months before his death. He gave me money sometimes. I can't say what per cent. he gave me, but on or near pay day he would give me ten or fifteen dollars. After he left for Texas, he never sent me any money, I cannot remember when he gave me money, as he always gave it to me in person, except two times. The second time was in November, 1892. The reason I remember it is because it is the last he ever gave me."

W. H. Mayo, father of the deceased, testified that the deceased enjoyed good health, was able to perform hard labor, a good worker, sound in body and mind, and that he was temperate, frugal, and industrious; that he would have lived to be an old man, according to the ages of his grandparents. "He had been away from home about three months when he was killed. He made my home his home before he left. He did not send me any money from Cleburne, Texas. He gave me seven dollars in September, 1892."

Charles Gibson testified that Mayo was killed by being crushed between the cars he was trying to couple. "After he was taken out, I noticed one of the drawheads broken and knocked down until it struck the ground and fell out. I did not notice whether it was an old break or a fresh one. I think the cars came back at the rate of five or six miles per hour. I noticed a bad order card on the car that killed Mayo. This card was about six or seven feet from the end of the car, tacked on the side of the car where Mayo was. The card was about three inches square. These cards are put on cars that are supposed to be in bad order. These cards do not indicate particularly what part of the car is out of repair. I could not tell what part of the car needed repair from the card. I would know that some part of the car was in bad order. The card was red, and on the same side of the car Mayo was on. I am not a switchman. The cars he was attempting to couple were flat cars."

P. McDaniel testified that he reached the scene of the accident shortly after it occurred. "I noticed the drawhead on the north car. It was broken, and the timber shattered. It was considerably shattered, and pitched under the car, like it had been done with some force. The timbers to which the drawhead was fastened were splintered. It was the timbers that were shattered and pitched under the car. It was pine timbers. Part of it was old, and part new. The timbers pitched round there were all newly broken,—splintered up, like it had been done with force. I think it had been broken at that spot. I cannot tell what force it would have taken to have bursted the timbers. They were on a level track. I do not know how fast the cars were going when they came together. The drawhead is the cast iron that holds the links. The iron is not broken. It was the timber that holds these things."

B. Wright testified that he was coroner, and visited the scene of the accident before the deceased was removed. "He was mashed in the heart about the size of my hand, and there was a little bruise on his back, but not to amount to much. I judge the mash on his heart was what killed him. I examined the cars with reference to the drawheads. They were said to be in bad condition. I am not a judge. The coupling was knocked down when I got there. I examined the cars, and one of the drawheads were down,—the one on the south car, but the north end of it. One end of it was down. The carry iron was broken. The other end of the drawhead was up all right."

John Stanton testified: "I was about ten car lengths from Mayo when he was killed. I got there about five minutes afterwards. When I got there he was standing between two flat cars, dead. One of the drawheads was knocked down on the ground, and the drawbars caught Mayo. The drawbar is made of cast iron. The drawbar was let down, because the carry iron that holds it up was gone. The carry iron is placed under the drawbar across the two draft timbers. The carry iron was off, so that, when struck, there was nothing to support it, and a little jar knocked it on the ground. I was working with the gang with Mayo just before the accident. I uncoupled the car that mashed Mayo, and the drawhead almost caught my thumb, and I said: `If you are going to use that any more, you had better be careful.' There was no engine attached to the car when Mayo was killed. The car was being pushed about two miles per hour. When the car was uncoupled, the defect was not perceptible. It was apparently all right. The drawhead remained at its place. When the cars came together, the drawhead was knocked down. If the coupling had been made, Mayo would not have been killed; but he missed the coupling, and that caused the carry iron to drop on the ground. I have been railroading about fifteen years, and switching about twelve years. It is the duty of a switchman to couple and uncouple bad order cars, as well as good cars. Bad order cars are designated by tacking a red tag on the side of it, marked `Bad Order.' That is the way these were designated when Mayo went to work on the yard, and they were so designated when he was killed. They never had any other way of designating them. The track where Mayo was killed was level, with a slight curve. It was necessary, in...