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

• Decision Date: 02 March 1918
• Docket Number: (No. 259.)
• Citation: 202 S.W. 188
• Court: Texas Court of Appeals
• Parties: HARGROVE v. GULF, C. & S. F. RY. CO.

202 S.W. 188

HARGROVE v. GULF, C. & S. F. RY. CO.

(No. 259.)

Court of Civil Appeals of Texas. Beaumont.

March 2, 1918.

Rehearing Denied March 27, 1918.

Appeal from District Court, Jasper County; A. E. Davis, Judge.

Action by Gay Hargrove against the Gulf, Colorado & Santa Fé Railway Company. Judgment on directed verdict for defendant, and plaintiff appeals. Reversed and remanded.

Powell & Huffman, of Jasper, for appellant. F. J. & C. T. Duff, of Beaumont, for appellee.

HIGHTOWER, Jr., C. J.

This suit was filed in the district court of Jasper county by Gay Hargrove, as plaintiff, to recover from the Gulf, Colorado & Santa Fé Railway Company, defendant, damages for personal injuries alleged to have been sustained by plaintiff, while in the employ of said railway company, on or about October 2, 1915.

The plaintiff's petition alleged, substantially, that he was employed by the defendant to operate what is called a loader machine on one of defendant's work trains in Jasper county, Tex., near Kirbyville; that one McKee was conductor on said train, and was foreman of the crew; that on or about October 2, 1915, said work train and crew thereon were engaged in picking up steel rails from off the right of way of defendant, and loading such rails on flat cars, and that plaintiff was operating the loader, placing them on cars; that about 1:30 o'clock in the afternoon of said day this work train was standing on defendant's main line when defendant's south-bound passenger train, going in the direction of Beaumont, came in sight, and that said conductor, McKee, thereupon signaled this work train to move to a side track, in order to let such passenger train pass; that immediately upon such signal being given, plaintiff started to the caboose attached to the rear of said work train, for his safety, as was the custom of the crew thereof to do, when this work train was to be moved from one point to another; that, just after starting to the caboose, he was ordered by defendant's said conductor and foreman in charge of said work train to go back to the loader machine, and fix up the boom used in connection with loading rails on said work train, which order plaintiff obeyed, and that after fixing the boom the work train was moving at too great rate of speed for him to get off of the same and catch the caboose, and that he sat down on the edge of an empty flat car, which was between the car the loader machine was on and the car loaded with steel rails, and on the end of said empty car next to such loader machine; that there were no standards placed in the side of the loaded car in front of the car upon which plaintiff sat down, which fact was unknown to plaintiff, and that the work train was running at such rate of speed, on its way to the side track, that the steel rails fell off of said loaded car, and were thrown, pitched, and propelled by said moving train to and near the place where plaintiff was sitting on said flat car, and in such manner as to render his life in great danger; that, in order to protect himself from such danger, plaintiff was compelled to jump from said moving train, and while thus trying to escape from such danger plaintiff received the injuries complained of. The specific acts of negligence charged against defendant were: (1) That the car upon which the steel rails fell was negligently and carelessly loaded by the defendant, in that there were no standards placed in the pockets on the side of said car to hold the rails thereon and to prevent them from falling therefrom; (2) that defendant was negligent in causing plaintiff to remain on said flat car while said train was being moved, instead of permitting him to go to the caboose, where he attempted to go; (3) in running, and permitting to be run, the work train in such way and manner and at such rate of speed as to throw the steel rails therefrom, which the defendant then and there knew had no standards or guards upon it to prevent said rails from falling therefrom.

Defendant answered by general demurrer, several special exceptions, and general denial, and further specially answered substantially as follows: (1) That defendant was an interstate carrier, operating a line of railway from points in Oklahoma to Galveston, Tex., for the transportation of freight and passengers in interstate commerce, and that the part of the line on which plaintiff was injured was used by it in the carrying on of its interstate commerce; that plaintiff, at the time of his injury, was engaged in repairing said track, in order that such interstate commerce might be successfully carried on, and that, therefore, its liability to plaintiff for the injuries, if any, which he sustained, existed under and by virtue of the Federal Employers' Liability Act. (2) That defendant was not negligent in failng to place standards on the car that was being loaded with rails, as said car had not been completely loaded, and that the plaintiff knew that it was not customary to place standards on said car until the loading had been completed. (3) That plaintiff knew that there were no standards on said loaded car, or by the use of reasonable diligence could have known it, and that in going upon said car, instead of remaining on the car upon which the loader was situated, plaintiff was guilty of contributory negligence. (4) That at the time plaintiff went upon said empty car and sat down he knew, or by the use of reasonable diligence could have known, that the car loaded with steel rails had no standards on it, and that the danger of said rails falling from said car was as open and apparent to the plaintiff as to the defendant, and that plaintiff assumed all risk of danger of injury to him by reason of his being on said car. (5) That plaintiff was not in any danger of being injured by the rails falling off said flat car while on such empty car, and would not have been injured had he remained on said car, but that the injury to plaintiff was caused by reason of his jumping off of said car while the train was in motion, thereby contributing to his injury, and was therefore guilty of contributory negligence. (6) That there had been provided for plaintiff a safe place to work, to wit, a car on which the loader machine was placed, and that plaintiff should have remained in his position where the loader machine was placed, both while discharging the duties of his employment, and while the train was being moved from one place to another, and that if plaintiff had remained in his place where said loader machine was he would not have been injured, and that plaintiff, in leaving such position and going to the empty flat car while the train was moving, assumed all risk of injury which might occur to him by reason of his being on said flat car.

To this answer plaintiff filed a supplemental petition, and among other things denied, in substance, that defendant, on the occasion in question, was an interstate carrier, and also denied that plaintiff was engaged in interstate commerce or in aid thereof, and denied that the liability of defendant for the injuries complained of was covered by the Federal Employers' Liability Act.

Upon trial of the case below, the court, after the evidence was concluded, at the request of defendant peremptorily instructed the jury to return a verdict in its favor, which request was granted, and the jury, in obedience thereto, returned a verdict in favor of the defendant, upon which verdict judgment was entered accordingly. Plaintiff filed a motion for new trial, which was overruled, and the case is properly before this court on appeal.

Appellant's first assignment of error complains of the action of the court in peremptorily instructing a verdict in favor of appellee, and in that connection contends that the evidence adduced was sufficient to raise an issue for the consideration of the jury relative to the allegation in his petition that appellee was guilty of negligence in failing to have standards in the pockets on the side of the car on which the steel rails were loaded, and that such issue should not have been taken from the jury; and by his second assignment of error appellant complains that, even if the evidence was sufficient to show that appellee was engaged in interstate commerce, and that appellant was employed and engaged in futherance thereof, and that, therefore, appellee's liability should be governed by the Federal Employers' Liability Act, nevertheless the defense of assumed risk interposed by appellee in that connection was by the evidence adduced made one of fact for the consideration of the jury, and that the court erred in assuming that appellant assumed the risk which resulted in his injuries as a matter of law.

The contention of appellee is that the evidence showed conclusively that appellee, on the occasion in question, was an interstate carrier of passengers and freight, and was engaged in interstate commerce, and that appellant was engaged in the aid and furtherance thereof; and, further, that the evidence shows conclusively that the injuries which were sustained by appellant were caused on account of the absence of standards on said car on which said steel rails were loaded, and that the absence of such standards was known to appellant, or by the use of proper care on his part, while in the discharge of his duties, could have been known to him, and that he fully appreciated the danger arising by reason of the want of standards on said car, and that, therefore, appellant was not entitled to recover for any injuries so sustained, and that the trial court correctly instructed a verdict for appellee.

As we view the record in this case, there are really only two questions for the consideration of this court: First, was the liability of appellee for the injuries complained of by appellant dependent upon the act of Congress passed in 1908 relative to the liability of railway companies engaged in interstate commerce for injuries sustained by their...