Hailey v. Missouri, K. & T. R. R. Co., 12928.
| Decision Date | 03 February 1934 |
| Docket Number | No. 12928.,12928. |
| Citation | 70 S.W.2d 249 |
| Parties | HAILEY v. MISSOURI, K. & T. R. R. CO. |
| Court | Texas Court of Appeals |
Appeal from District Court, Tarrant County; Marvin H. Brown, Judge.
Action by Edward Hailey against the Missouri, Kansas & Texas Railroad Company of Texas. From an adverse judgment, plaintiff appeals.
Affirmed.
Houtchens & Houtchens and J. Harold Craik, all of Fort Worth, for appellant.
Thompson & Barwise, of Fort Worth, for appellee.
Edward Hailey instituted this suit against the Missouri, Kansas & Texas Railroad Company of Texas for damages. The defendant railroad company has owned and operated for a number of years a line of railway in and through the city of Fort Worth. It has in Fort Worth and in the vicinity of the accident involved a main line and various switching and industry tracks. These tracks cross at grades both South Main and Capps streets. It was proposed to construct an underpass for defendant's various lines, extending from a point on South Main street to a point on Capps street. The underpass is not located on either South Main or Capps street, but runs across the corner of the intersection of these two streets. The work of constructing the underpass was done by excavating the grade of the railroad company's various tracks, and during all of the time of this excavation work the railroad company continued to operate its trains in the usual and ordinary way.
The railroad company entered into a contract with the Frank Parrott Construction Company to build this underpass. The Parrott Construction Company, according to the pleadings of the plaintiff, was an independent contractor and it is shown by the evidence that it removed all of the dirt necessary for the construction of this underpass and employed all of the men constructing said underpass, including Edward Hailey, plaintiff herein, and at the time of Hailey's injury the work had proceeded to the point that an excavation of some 20 feet in depth, or more, had been constructed under the railroad tracks. This work had all been done by the employees of the Parrott Construction Company, including Hailey. It was shown that the walls of the excavation were straight up and down, or nearly so; that the walls were not braced and appellant, while working at the bottom of this excavation, was injured by a large amount of dirt falling on him, and he pleads that the railroad company was negligent (1) in failing to furnish him a safe place to work; (2) in failing to warn him of the danger of the embankment caving in; (3) in failing to inspect the premises; (4) in failing to brace the walls; (5) in operating trains over the excavation; (6) in the use of its tools in working on its tracks.
The pleadings were presented, evidence heard, and when the plaintiff rested his case, the defendant railroad company moved for an instructed verdict. The court granted this request, instructing the jury to return a verdict for the defendant railroad company, and Hailey has appealed from this judgment.
The crucial point in this case is whether or not, under the facts, the railroad company was under duty to furnish plaintiff a safe place to work.
Appellant presented two witnesses who testified as to the manner and way the accident happened. Appellant himself testified that he was working for the Parrott Construction Company, having been employed by the superintendent of said construction company, and that he received his pay from the construction company; that when he first went on the ground there was no underpass or crossing of any kind at the point where the underpass was to be constructed; that the railroad lines were on a dump some 6 or 7 feet high, and that Mr. Parrott of the Parrott Construction Company, as well as appellant himself, began cutting the excavation under the railroad tracks; that at the time of the injury the walls, by reason of such excavation, were some 18 to 20 feet high; that the employees of the construction company had done all the excavating, and that he had helped to do it; that the construction company used drag lines, picks, shovels, and dynamite in doing the excavating work; that the railroad tracks extended over the underpass and trains passed over the underpass every day; that just before the injury, when a train was passing over the tracks, plaintiff stepped out to one side and after it passed over in about ten seconds he went back under the tracks where he had been working; that about the time he picked up his tools some one about the tracks holloaed, "look out"; that he wheeled around and a clod of dirt hit him in the back; that he fell down in the pier hole and the dirt rolled in on him; that the cave-in came from the top; that a railroad inspector told him that when a train came over to step to one side but after the train had gone over everything would be safe; that he did that; that this warning was given at times when trains had passed over.
Another witness, Will Hand, testified that he was employed by the Parrott Construction Company; that the walls of the underpass were straight up and down at the time of appellant's injury; that it was usual for the railroad company to switch over the underpass; that some three trains in the morning and four or five in the evening cross over the underpass while in construction; that the Parrott Construction Company moved the dirt from the underpass and used trucks, drag lines, and dynamite in doing their work; that the construction company moved all of the dirt, did all of the digging, and that there was no bracing or other protection to keep the walls from falling down; that the walls had been sloped in some places but had not been sloped under the trains where the injury occurred; that where the walls had been sloped the work had been done by the Parrott Construction Company; that just before the injury a switch engine with about 12 or 15 box cars passed over the tracks; that the train was operated over the tracks and about the tracks for some time,...
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