Hammon v. Texas & N. O. R. Co., 52

• Decision Date: 16 July 1964
• Docket Number: No. 52,52
• Citation: 382 S.W.2d 155
• Parties: E. F. HAMMON, Appellant, v. TEXAS & NEW ORLEANS RAILROAD COMPANY, Appellee.
• Court: Texas Court of Appeals

Page 155

382 S.W.2d 155

E. F. HAMMON, Appellant, v. TEXAS & NEW ORLEANS RAILROAD COMPANY, Appellee.

No. 52.

Court of Civil Appeals of Texas, Tyler.

July 16, 1964.

Rehearing Denied Sept. 24, 1964.

Raymond L. McDermott, Mabel Grey Howell, Houston, for appellant.

Richard B. Miller and R. Gordon Gooch, Baker, Botts, Shepherd & Coates, Houston, for appellee.

MOORE, Justice.

This is an action by E. F. Hammon, a brakeman, to recover damages under the Federal Employers' Liability Act, 45 U.S.C.A. Sec. 51 et seq., by reason of a derailment of the switch engine on which he was riding while engaged in the performance of his duties as a brakeman. Upon the trial of the cause, the jury returned a verdict fot the defendant. Based upon the verdict the court entered judgment in favor of the railroad company, to which plaintiff duly perfected this appeal.

The partinent portion of the plaintiff's pleadings, alleging negligence on the part of the defendant was as follows:

'* * * On or about October 17, 1960, Plaintiff was employed as a switchman by the defendant and was acting within the course and scope of his employment for the defendant in Harris County, Texas, when he suffered severe bodily injuries. On such occasion, an old, worn out, defective track of the defendant gave way with the engine of the defendant which was operating thereon when a rail of such track broke resulting in the rail springing up and knocking with great force the plaintiff from the engine. Plaintiff was thrown to the ground and in so doing, struck both knees and legs forcibly against metal portions of the engine. Plaintiff suffered a severe traumatic shock and injuries hereinafter detailed. The occurrence made the basis of this suit resulted from the negligence and carelessness of employees and representatives of the defendant, other than your plaintiff. Such negligence was a proximate cause of the occurrence made the basis of this suit and of the injuries and damages suffered by Plaintiff.'

The defendant, by appropriate pleadings, denies these allegations and pleads unavoidable accident. In answer to the special issues submitted by the Court, the jury found (1) that defendant did not fail to 'maintain' its track in such a manner as would have been done by a reasonably prudent railroad company in the exercise of ordinary care; (2) that the accident was unavoidable, and (3) that plaintiff suffered special damages in the amount of $1,261.00, and general damage in the amount of $5,000.00. No other issues were requested or submitted. The single objection to the charge leveled by the plaintiff was to the effect that there was no evidence to support the submission of the unavoidable accident issue.

Plaintiff now claims error on the part of the trial court in denying his motion for a new trial; in submitting an issue on unavoidable accident; in rulings on evidence and on the court's failure to declare one of the jurors disqualified. Each will more fully appear hereinafter.

Plaintiff produced testimony showing that on the occasion in question he working as a member of the switching crew, which was in the process of 'spotting' a loaded box car at a warehouse on what is known as the old Oriental Testile Industrial track in Harris County, Texas; that the engine being used was a diesel switch engine weighing approximately 232,000 pounds; that immediately before the derailment, the engine and the loaded car had passed over the track and the car had been 'spotted'; that as the engine was backing out of the industrial track, toward the main line, at a speed of about 6 to 8 miles per hour, he, together with a fellow employee, was riding on the front footboard on the front of the train, which was situated immediately above the rail; that the engine suddenly became derailed and rolled along across ties and then re-railed itself; that in the process, the rail under the footboard where plaintiff was standing broke in two places, causing the end of the rail to 'kick up' and strike the footboard; that the impact knocked the footboard loose from the steel support, causing a portion of the footboard and the supports to strike him on the knees and abdomen; that he was knocked off the footboard; falling upon his knees upon the tracks; that he suffered an injury to both knees, causing them to bleed; that after being given first aid at the company hospital, he went home where he remained for two days before returning to work; that his knees and legs continued to bother him, and after returning to the company hospital for treatment on two other occasions, he employed Dr. F. O. McGee, some three weeks after the injury, who continued to treat him until July, 1961, at which time he operated upon plaintiff's left knee; that thereafter he was off from work for 8 months, after which he returned to his regular employment as a switchman in March, 1962, where he continued to work to the date of the trial.

According to the plaintiff, and three of the members of the switching crew, the section of the industrial track where the rail broke had been in a state of disrepair for the past fifteen years. They testified, in substance, that during that period of time none of the cross ties supporting the rail had been replaced; that the ties were rotten and decayed; that a great number of the spikes holding the ties to the rail were missing; that there was no ballast around the ties to hold them in place; that the rail was a small rail, being what is known as a 60-pound rail and had been in use for many years; that it was rusty and worn, and that the track was rough and the train 'wobbled' as it passed over the point where the rail broke.

Defendant called as its witness, Pat Neely, the road master in charge of the maintenance and repair of defendant's industrial tracks in the area. According to his testimony, this particular section of track in question had been out of service from about 1943 to 1955, because during the war years the railroad did not have any industries located along this section of the track that required switching services. In 1955, some five years before this accident made the basis of this suit, Neely testified that under Neely's supervision, this section of the track had been completely re-habilitated and had been placed in first class operating condition. The track was raised some three or four inches; the rails were checked for defects and approximately one-third of the cross ties were replaced; that the weight of the trial was 60 pounds to the yard; that this type of rail was in general use on industrial tracks, not only by defendant but by other railroads in the area. He testified that he and his assistant and the regular track inspector, made regular inspections of the company's industrial track and that the section of track in question was inspected once a week, for which a check was made for rotten ties, loose spikes, defective rails and ballasts, as well as being inspected for low places in the track by the use of a level, but that he had not found or had any defect reported to him, and that the track was in good condition at the time of the derailment. He further testified that the breaking of rails was a common occurrence in the operation of a railroad and that a change in the weather was the most common cause, but that on some occasions a rail will break because of a defect in the metal. He further testified that the company used electronic equipment to search for defects and breaks in the rail on main lines, but that the use of such equipment was not practical on industrial tracks because of the dirt and debris.

One of plaintiff's witnesses, W. B. Kyle, testified that the condition of the track on the date of the trial was the same as that on the date of the derailment. J. W. Dukes, a track inspector for defendant, testified that while he was not the track inspector prior to the accident, that at the time of the trial, the track was in good condition.

There was no testimony describing the condition of the rail after the break except that the rail was broken in two places.

Plaintiff, in his first three points, contends that under the above factual situation, he has proved negligence as a matter of law and if not, then in the alternative he contends that there is no evidence to support the negative finding of the jury on Special Issue No. 1, or at least is insufficient evidence to support the finding.

The burden of proof was upon the plaintiff to establish negligence on the part of the defendant railway company by a preponderance of the evidence. This burden could have been discharged by obtaining a jury finding, supported by evidence of probative force or by undisputed evidence conclusively showing negligence. Having failed to obtain a jury finding of negligence, plaintiff now contends that he established negligence as a matter of law. Under the facts presented in this record, we are not prepared to hold that the evidence showed defendant guilty of negligence as a matter of law, nor can we say that the verdict fails to find support in the evidence. To so hold would be to say that the defendant, as a matter of law, failed to use the care of an ordinary prudent railroad company in maintaining its track. It was undisputed that the train derailed and the rail was found to be broken. It was not shown, however, whether the broken rail caused the derailment or whether the derailment and the subsequent re-railment caused the break. Although it seems to be conceded that the break was a new break, there was no testimony linking the break to any defect in the rail itself. The switch engine, together with the car, had passed over the place of the break only moments before the derailment without incident. Hence, we think that the jury could have reasonably concluded that if there was a defect in the rail, same was such that it would not have been detected by a reasonable inspection and was not, therefore, under the circumstances, negligent in the...