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

• Decision Date: 29 April 1903
• Citation: 74 S.W. 570
• Parties: GULF, C. & S. F. RY. CO. v. LOVETT.<SMALL><SUP>*</SUP></SMALL>
• Court: Texas Court of Appeals

74 S.W. 570

GULF, C. & S. F. RY. CO. v. LOVETT.^*

Court of Civil Appeals of Texas.

April 29, 1903.

Error from District Court, Grayson County; Rice Maxey, Judge.

Action by S. A. Lovett against the Gulf, Colorado & Santa Fé Railway Company. Judgment for plaintiff. Defendant brings error. Reversed and rendered.

J. W. Terry and Cowan, Burney & Lee, for plaintiff in error. Randell, Wood & Hassell, for defendant in error.

NEILL, J.

This suit was brought by S. A. Lovett against the railway company on the 3d day of August, 1900, to recover $50,000 damages for personal injuries alleged to have been inflicted on the 12th day of October, 1898, by the negligence of the defendant. The grounds of negligence alleged will be stated when we come to consider the several assignments of error challenging the sufficiency of the evidence to establish the acts of negligence charged. After interposing exceptions to plaintiff's petition, the defendant answered by pleas of not guilty, assumed risk, and contributory negligence. The trial of the cause, which was before a jury, resulted in a judgment in favor of the plaintiff.

The facts show that on the 12th day of October, 1898, Ricker, Lee & Co., a partnership, were, and had been for some time prior thereto, independent contractors of defendant railway company, engaged in operating steam shovels at a gravel pit of defendant near Cameron, Tex. The defendant maintained a spur track running northeast from the main line of its road, a distance about three-fourths of a mile, to a gravel pit. Where the spur track intersects the main line there is a shanty used by the defendant's telegraph operator for conveying and receiving telegrams to and from its train dispatcher for the purpose of imparting information as to position of trains on the main track to the gravel pit, so as to prevent collisions. The operator also throws the switch so as to let trains pass to and from the spur and main tracks. About halfway between the switch and the gravel pit the road on the spur track crosses a bridge about 70 or 80 feet long. About 40 feet from the end of the bridge nearest the gravel pit there is a path extending in a northwesterly direction to a section house, which is situated just east of the main track. It is about 612 feet by the path from the spur track to the section house. It is 960 feet from the section house to the spur switch. Opposite the section house, and west of the main line of road, there is a side track about 714 feet long, which has a switch at each end, and is used by trains passing each other at that place. On the date stated, Ricker, Lee & Co. had seven or eight hands in their employ, operating steam shovels in digging gravel from the pit and loading it upon the defendant's cars. Among the hands employed by them at that time was the plaintiff. These hands boarded at the section house, and, in going to and from their work, generally went to and from the pit on the gravel train, and were permitted to do so, during all the time they were employed, by the defendant's employés who operated the gravel train. And there is evidence to show that the defendant's road master, superintendent, and general manager knew of and acquiesced in their being carried to and fro from their work to the section house in this manner. The operator at the switch shanty determined whether it was safe to allow a train to pass from the spur onto the main track. When a gravel train was to go on the main track, its engineer notified the operator by giving four quick blasts of the engine whistle in time to stop the train before reaching the switch in the event the operator should not permit it to pass over. At noon on the 12th day of October, 1898, a gravel train, consisting of an engine and five cars loaded with gravel, started from the pit to the section house to take the siding opposite it, and allow the train crew and the employés of Ricker, Lee & Co. to get their dinner. The plaintiff, Lovett, got on the rear footboard of the engine, between the tender and the first car, before the train started from the pit. When it reached a point near the path which extends from the track to the section house, plaintiff was either thrown off by a violent jerk of the train, as he contends, or jumped off, as is contended by the defendant, and in some way got his feet under the car, which ran over and cut off one foot and a large part of the other. It is to recover damages for the injuries thus occasioned that this suit was brought. Plaintiff alleges as his cause of action that the defendant, by its agents and servants, negligently ran the train at a high and dangerous rate of speed, without keeping a lookout for trains on the main line, and not having its engine under control, and that it so negligently handled and managed the engine and cars that they were so suddenly checked, jolted, and jarred as to cause him to lose his balance and fall from the train, whereby he was run over and injured as stated.

It is contended by defendant, under its assignments of error: (1) That plaintiff was a trespasser, and not a passenger, upon the train; (2) that the evidence is insufficient to show a sudden jerk, check, or stop of the train; (3) that there is no evidence tending to show any negligence on the part of defendant, or its servants operating the train, even though it were shown that there was a sudden jerk, check, or stop; (4) that the overwhelming preponderance of the evidence shows that plaintiff was not thrown from the train by a sudden jerk, but that he jumped therefrom, and thereby caused his own injuries; (5) that the undisputed evidence shows that he was guilty of contributory negligence in riding upon the footboard of the engine. The questions thus raised will be considered in the order stated.

1. We are satisfied from the evidence that the plaintiff was not a trespasser upon the train, but, under the view we take of the case, we deem it unnecessary to decide whether the defendant owed to him the duty of a common carrier to a mere licensee, a servant, or a passenger. If necessary to decide the question, we would be inclined to the view that it owed him a higher duty than is due a mere licensee, and not that high degree of care due a passenger, but that the duty it owed him would, by analogy, be such as is due by a railroad company to a servant riding upon a train of the kind plaintiff was on, to and from his work; that is, ordinary care. While plaintiff, in the strict sense of the term, was not defendant's servant, his relation to it in being carried to and from his work, which was really for the railroad company, was analogous to that of a servant. We think the evidence demonstrates that the duty or degree of care defendant owed to him—whether that to a servant or passenger—was fully discharged.

2. Is the evidence insufficient to show a sudden jerk, check, or stop of the train? Upon this question the substance of plaintiff's testimony is as follows: "I was on the back footboard of the engine. Had hold of the handhold back of the engine, standing on the right side, one or two feet from the end of the footboard behind the engine, and in front of the car next to it. The train was running very fast—18 or 20 miles an hour. The engine and cars are supposed to have air brakes. Don't know whether they did or not. Know they had air on the engine. I could not say as to the cars. The air brakes were applied, and there was a sudden jerk or jolt of the engine. It was a sudden sort of a stop. The hold on the engine broke loose by the sudden stopping, and I was thrown from the engine. When I was thrown off, the engine, to the best of my recollection, was within 80 or 90 yards from the main line. I was looking to the right of the engine, towards the main line, at an angle of 45°, and I saw a train going east or southeast on the main track. Heard its engine whistle, but cannot say how long the train was, or whether the engine had passed the track where my train was joined to the main track. That was about the time of the sudden jerk. When I was jerked loose by the jar, I threw myself out to the right to save myself and to avoid being thrown under the wheels. If I had not, I would have fallen under the cars, across the rails." James McMahan, one of the employés of Ricker, Lee & Co., testified: "Mr. Lovett was on the footboard, on right-hand side. I was standing on outside corner of footboard, next to track, as far from the drawhead as I could get. I was holding on with one hand. About the time Lovett left the train, I was looking forward. I never felt any jerk or jar of any kind to the train." J. H. Hall testified: "At the time of the accident I was sitting on front end of car, behind tender. I got on the train at the gravel pit, and was right close to Mr Lovett. He was standing on footboard right by me—between me and tender. I saw him at time he left train. There was not at that time, nor at any time just prior thereto, any jerk or jar of the train that I felt at all. If there had been any jerk or jar, I could have felt it, in the position I was in." W. S. Wilson testified: "When Lovett was hurt I was on a car of gravel on the same train he was, and I was near the front of it. I saw Lovett, I suppose, half a minute before the accident happened. He was standing on rear end of tender, on footboard, with his hands on the rods they have to hold on it. He looked as though he was standing right on the end, with his hand holding the rod. The first thing that called my attention to the accident was that I saw Lovett lying by the side of the track as I passed by. This was just as the car was passing over him. At the time Lovett left the train, or about that time, there was no sudden jerk or jar of the train that I perceived at all. I was sitting on top of a car load of gravel." Frank Mack, the conductor, testified: "I was on the engine at the time Lovett was hurt. Just about the time the engine got to the bridge I glanced back, and...