Harvey v. Texas & P. Ry. Co.

• Decision Date: 12 January 1909
• Docket Number: 1,782.
• Citation: 166 F. 385
• Parties: HARVEY v. TEXAS & P. RY. CO.
• Court: U.S. Court of Appeals — Fifth Circuit

166 F. 385

HARVEY v. TEXAS & P. RY. CO.

No. 1,782.

United States Court of Appeals, Fifth Circuit.

January 12, 1909

Rehearing Denied February 2, 1909.

Decedent and a co-employé, engine hostlers, sat in the window of an engine cab as it was being taken to a coal chute where they were to load the tender. The hips of both protruded from the window, and, while decedent's fellow servant escaped decedent's hips came in contact with a roundhouse post negligently set too near the track, and were crushed. Held that decedent was not negligent, as a matter of law.

This action was brought by the plaintiff in error against the defendant in error to recover damages for negligently causing the death of her son, under a Texas statute allowing the mother to sue in such cases. The action was begun in a state court, and was removed on petition of the defendant to the court below on the ground that the defendant was a corporation under the laws of the United States. The plaintiff alleged in her petition that her son, W. S. Harvey was in the employment of the defendant as a hostler's helper in and about the defendant's roundhouse. The place and circumstances of the accident were then alleged as follows:

One of the tracks entering said roundhouse, over which the engines of defendant passed in entering and coming out of said roundhouse, was so constructed and maintained by defendant that engines being operated and moved on said tracks passed between and very near, and in close and dangerous proximity to, posts or columns which stood upright about the entrance to the roundhouse, which said posts supported a portion of the roundhouse, and which were large, firm, and secure, and said posts were by defendant maintained and kept so close to said tracks that engines being operated on said tracks passed in dangerous and close proximity thereto, and would almost strike against said posts, and that there was barely room for the engines to pass between the posts, all of which facts and conditions were well known to the defendant company; and defendant company knowingly constructed, kept, and maintained said tracks and posts as aforesaid, and knowingly permitted them so to be and remain. The aforesaid conditions and surroundings were dangerous to the lives and safety of the defendant's employes, including said deceased, whose duties required them to operate and to be in and about defendant's engines while they were being operated in said roundhouse, and this the defendant company well knew; and the defendant was guilty of negligence in so maintaining the same, and in permitting the said tracks and posts to so be and remain. On the date aforesaid, one of the defendant's engines was in said roundhouse and was about to be moved out of the same over the track aforesaid, and the said W. S. Harvey, in the discharge of his duty and the performance of his services to the defendant company, was on said engine. Another of defendant's servants was in charge of and operating the said engine, and ran the same over the track and between the posts aforesaid, and said W. S. Harvey, having a portion of his body extending out of the engine, was caught between one of said posts and the engine, and was thus mashed and crushed, and thereby received injuries from which he shortly died.

There were other averments of negligence on the part of the defendant not material to state, and averments of special damages.

The answer of the defendant set up three defenses: (1) That the defendant was not guilty of negligence: (2) that the deceased had assumed the risk of the danger whereby he had lost his life; and (3) that the deceased was guilty of contributory negligence whereby he lost his life.

The case was tried on these issues.

The facts may be best stated by giving the substance of the testimony of each witness:

D. George testified: 'I knew W. S. Harvey, and remember the circumstance of his receiving injuries at the Texas & Pacific shops at Marshall, in December, 1905. I was helping hostle at that time. Mr. Harvey was helping hostle also. The hostler is supposed to be the man who takes the engine in and out of the roundhouse; he is an engineer, and we are supposed to help them. We were supposed to help take the engines to the coal chute and coal them up; that is, put coal on them and get them ready to go out on the road; that is what I mean by 'hostler helper.' I had been hostler helper since July of that year. Harvey was there when I went there. When Harvey was injured, I was working in that capacity, as was Harvey also. He was on engine No. 248 that was going to be used for the passenger train. As well as I remember, it was between 1 and 3 o'clock when he was injured. When I first saw Harvey on the engine, it was in the roundhouse. We were sitting there talking. Eli McGillery was the hostler or engineer; I was helping him. We were both, Harvey and I, sitting on the fireman's side of the deck of the engine. The engine was standing still when we first got on. Harvey was sitting in the front cab window, and I was sitting right behind him. The engine was moved backward. I was to the rear and he was to the front, both sitting in the cab window together, fronting in the direction of the boiler and of the engineer, and the engine was started backward to be taken out of the roundhouse, to go to the coal chute and be supplied with coal, and carried to the depot. We were both sitting in the window with our backs to the outside; the engine moving backward carried us sideways. I noticed nothing unusual in the way the engine moved out of the roundhouse, only that when it started Harvey was caught between the post and the cab window, and I noticed him and grabbed him and set him on the seat, and he fainted. We were sitting with our backs out the west window of the cab, toward the post; the engine was moving south, and as Harvey passed that post it caught him and mashed him against the cab window, between the cab window and the post. He never made any outcry, never spoke a word. We were sitting there talking, and I just happened to turn my head at the time it caught him. It caught him right through the hips. I set him down and he fainted. We were sitting there with out bodies partly stuck out of the cab line, back this way (indicating). I had my feet sitting up against the boiler head. I passed the post first. Harvey was sitting further out than I was, I suppose; if he was not, I would have been caught, too; it never even brushed me; I didn't feel it. It was an oak or pine post; I don't know which. It was stationary, a hard, substantial post. I suppose it was about 8x8, something like that. I don't know how near that cab passed to the post; I don't even know now. Judging from the position Harvey was in when he got caught, I should say it was six or eight inches from the cab window. I suppose the post had been there ever since the roundhouse has been built. My attention had never been called to the fact of its being so close before. When the accident occurred, I called to the hostler and told him he had hurt Harvey, and we took him off the engine and put him on a stretcher. After we got him off the engine, he came to his senses, and was then taken to the hospital. After they got him off the engine, I went on and supplied the engine with coal. We only had a short time, and we went ahead with our work. Harvey died three or four days after that. I know that roundhouse had been there several years. Those posts were there when I went there, and they were in the same position with reference to the track.

Harvey and I were sitting there with our bodies just over the window sill. That was not the usual way to ride. Of course, once in a while they will get up in there. Probably there is a little rest, and they had rather sit up there than on the seat box. Once in a great while the fireman and the hostler helper get up in there and ride around. We had our hips stuck out of the window, sitting on the window sill. The engine was standing still at the time we sat down. We remained sitting that way and the engine was moved out to be taken to the turntable and turned around. The windows in the cab are for the purpose of giving breeze; they are also used to look out for signals and things of that kind. They are not used to protrude your body out, but to stick your head and shoulders out and look backward or forward, as the case may be; that is the principal use they are put to. I don't suppose your head and body would protrude from the window but mighty little in looking for and catching signals-- just far enough to see them-- just barely have to stick your head out. That was a straight track there. I had been there four or five months at the time of the accident. No other person had been hurt by this post or these posts up to that time that I ever heard of. This was my engine Harvey and I were on. McGillery was the hostler, and I was supposed to help McGillery. Harvey was on the engine with me. He didn't have any particular business on there. We were just sitting there talking; that was all we were doing. I was going to the coal chute to supply the engine with coal. Occasionally, Harvey and I worked together. We were not working together at that time. I don't know whether he had any idea of helping me coal up that engine at all; of course, once and occasionally we did help each other. Maybe once or twice a month I would assist him or he would assist me. I don't remember how long it had been since he helped me coal up my engine. (Witness was here shown a statement in writing). I wrote this; it is my statement. I don't remember what time I made the statement. It was sometime in Ft. Worth. It was the time Reese Harvey came to Ft. Worth to see me. I have read it over; and, after reading it, I will say that...