Houston & T. C. R. Co. v. Robins

• Decision Date: 20 December 1929
• Docket Number: (No. 10456.)
• Citation: 23 S.W.2d 461
• Parties: HOUSTON & T. C. R. CO. v. ROBINS.
• Court: Texas Court of Appeals

23 S.W.2d 461

HOUSTON & T. C. R. CO. v. ROBINS.

(No. 10456.)

Court of Civil Appeals of Texas. Dallas.

December 20, 1929.

Rehearing Denied January 11, 1930.

Appeal from District Court, Dallas County; Joel R. Bond, Judge.

Action by A. Robins against the Houston & Texas Central Railroad Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Robertson, Robertson & Gannon, of Dallas, for appellant.

S. P. Jones and Franklin Jones, both of Marshall, for appellee.

LOONEY, J.

A. Robins, a brakeman in the service of the Houston & Texas Central Railroad Company in its yards at Dallas, was injured while in the discharge of duty by being knocked from the side of a box car being switched, lost his right leg, and sustained an incurable impairment of his left leg. He brought this action against the railway company for damages, under the Federal Employers' Liability Act (45 USCA §§ 51-59). At the conclusion of the evidence, defendant company moved for an instructed verdict, which was denied, and instead the court submitted to the jury all issues raised by pleadings and proof, resulting in findings altogether favorable to plaintiff, upon which the court rendered judgment in his favor. The defendant has appealed and presents for consideration only one assignment of error (others having been abandoned); that is, that the court erred in refusing to sustain its motion for peremptory instruction. The several propositions of law urged under the assignment will be discussed.

As the action is under the Federal Employers' Liability Act, the rights and obligations of the parties depend upon its provisions and applicable principles of common law, interpreted and applied in federal courts. Southern R. Co. v. Gray, 241 U. S. 333, 36 S. Ct. 558, 60 L. Ed. 1030, 1034.

The Supreme Court, in Randall v. Baltimore, etc., Co., 109 U. S. 478, 3 S. Ct. 322, 27 L. Ed. 1003, for the guidance of trial judges in acting upon motions for instructed verdicts, announced the following rule, that is to say, where the evidence given at the trial, together with all inferences that the jury could justifiably draw from it, is insufficient to support a verdict for plaintiff so that a verdict, if returned, must be set aside, the court is not bound to submit the case to a jury, but may direct a verdict for the defendant.

It is also well to bear in mind that the question of negligence does not become one of law, except where the facts are such that all reasonable men must draw the same conclusion therefrom, or, in other words, a case should not be withdrawn from the jury unless the conclusion follows, as a matter of law, that no recovery can be had upon any view which can properly be taken of the undisputed facts, or of the facts that the evidence tends to establish. Gardner v. Michigan, etc., Co., 150 U. S. 349, 361, 14 S. Ct. 140, 37 L. Ed. 1107, 1110.

One of the grounds relied upon by plaintiff for recovery was that defendant was guilty of negligence, per se, in that it located and maintained a switch stand, with which plaintiff's body collided, and the lead track on which the car from which he was knocked by the collision was being operated, closer together than permitted by a Texas statute, article 6559b, Vernon's Ann. Civ. St. 1925, which reads as follows: "All loading platforms and all houses and structures, and all fences, and all lumber, wood and other materials hereafter built, placed or stored along the railroads of this State, either on or near the right of way of the main lines, or on or near any spur, switch or siding of any such railroad, shall be so built, constructed, or placed that there shall be not less than eight and one-half (8½) feet space from the center of such main line, spur, switch or siding to the nearest edge of the platform, or to the wall of the building, or to the lumber, wood, or other material."

The contention of defendant is that the facts of the case do not bring it within the terms of this statute, and even if so, that it does not apply to a case brought under the Federal Employers' Liability Act.

The state statute, in our opinion, is a safety measure, designed to safeguard train operatives whose duties require them to ride on the side of cars, but whether or not the facts of the case bring it within the terms of the statute we express no opinion, for the reason that we hold that it constitutes no part of the law of the case.

It is now too well settled to admit of debate that the Federal Employers' Liability Act covers the entire field under which employers engaged in interstate commerce shall be liable for injuries to employees similarly engaged, and that the same supersedes all state and municipal legislation governing the circumstances under which the master, within the provisions of the act, shall be liable to the servant, although the act does not supersede state legislation outside the field of liability, nor does it deal with the duties or obligations of either employers or employees to the public. Chesapeake, etc., Co. v. Stapleton, 279 U. S. 587, 49 S. Ct. 442, 73 L. Ed. 861, and authories cited.

Defendant company also insists that the construction and maintenance, with reference to each other, of the switch stand and lead track, on which the car from which plaintiff was knocked was being operated, present an engineering question, and therefore that their maintenance was free from any imputation of negligence.

The following facts bear on this issue: The lead or switch track in question was constructed under the supervision of Mr. Slaborsky, division civil engineer of the Southern Pacific System, of which the defendant company is part, and was located on a strip of land that belonged to defendant, lying parallel to its main line, just east and adjoining the east main line track, and also adjoined land further east that belonged to a Mr. G. C. Brown. This land being two or three feet lower than the bed of the main line track, it was necessary, from an engineering standpoint, to fill the same to a level with the bed of the main line, and from the shoulder, of the outer edge, to slope it 1½ feet out for each foot in depth. The lead track was laid on this filled-in strip of land parallel with the main line, so that the center of the track was 9 feet from the shoulder to the fill, and at the point where the switch stand, in question, was located the tracks, that is, the main line track and the new lead track were 17.23 feet from center to center. The switch stand had no connection with the lead track, was in existence before its construction, was connected with and belonged to the main line, and was located 9½ feet from the center of the main line track. In constructing the new lead track, defendant utilized all the land it owned at that point, and, from an engineering standpoint, the new track was placed as far from the switch stand as could be safely done, without encroaching upon adjacent property which it did not own, and thus the new track was located so that it was only 7.72 feet from its center to the switch stand. No sufficient reason is suggested by the evidence why defendant could not have relocated the switch stand equidistant between the main line track and the new lead track, which, if done, would have placed it 8.61 feet from the center of each, and no reason at all is suggested by the evidence why defendant could not and did not acquire sufficient additional land on the east, either by purchase or condemnation, so as to avoid the necessity of introducing extra danger by placing the lead track close enough to the switch stand to collide with a switchman riding on the side of a passing car in the usual and customary manner of discharging his duties.

We do not think the location of the switch stand and lead track, in their relation to each other, presents an engineering question, beyond judicial inquiry, under these qualifying facts and circumstances. Section 1 of the Federal Employers' Liability Act (45 USCA § 51) provides that the common carrier, while engaged in interstate commerce shall be liable in damages to any person suffering injury while employed by such carrier in such commerce that results in whole or in part by reason of any defect or insufficiency, due to its negligence, in its cars, engines, appliances, machinery, track, roadbed, works, boats, wharves, or other equipment. The negligence cases cited by defendant in support of its contention that an engineering question is not subject to judicial scrutiny involved the issue of assumed risk, and those decided against plaintiffs were predicated on that, among other grounds. This doctrine seems to have been introduced first in Tuttle v. Detroit, etc., Co., 122 U. S. 189, 7 S. Ct. 1166, 1167, 30 L. Ed. 1114. The contentions of the parties were stated by the court as follows: "* * * `The first and third counts allege that boot-jack siding was negligently and unskillfully constructed by the defendant with so sharp a curve that the draw-heads of the cars in use by it would pass each other, and cause the cars to crush any one who attempted to make a coupling thereon;' and this alleged faulty construction of the track was the principal matter of contest on the trial,—the plaintiff contending that the defendant was bound, in duty to its workmen and employees, to construct a track that would not expose them to the danger which existed in this case; while the defendant contended, and offered evidence to prove, that the track was constructed according to the requirements of the situation, a sharp curve being necessary at that place in order to place the cars, when loading, along-side of the dock or slip; that such curves are not uncommon in station yards." It was conceded that danger to a brakeman making a coupling on the inside of the curve existed because of its sharpness, but the dangerous situation thus created was excused, on the ground of a necessity, that is to say, that the track was constructed according to the...