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

• Decision Date: 17 November 1909
• Court: Texas Court of Appeals
• Parties: HOUSTON & T. C. R. CO. v. RAVANELLI.

123 S.W. 208

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

Court of Civil Appeals of Texas.

November 17, 1909.

Appeal from District Court, Travis County; Geo. Calhoun, Judge.

Action by Richard Ravanelli against the Houston & Texas Central Railroad Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Gregory, Batts & Brooks and Baker, Botts, Parker & Garwood, for appellant. James H. Robertson, for appellee.

KEY, J.

This is a personal injury suit which resulted in a verdict and judgment for the plaintiff for $7,500, and the defendant has appealed. The plaintiff was engaged in the service of the defendant as a car repairer, and on the occasion in question, while putting some new bolts in a car in the defendant's yard in the city of Austin, he sustained such injuries as caused him the loss of one of his legs. The car that the plaintiff was engaged in repairing constituted one of a chain of seven or eight cars located on what was called the "house track." That track was next to the defendant's freight depot, and was used for the purpose of loading and unloading freight. The plaintiff alleged in his petition that the rules promulgated by the defendant and the exercise of ordinary care required the cars left standing on the house track to have the brakes set, so that they could not be moved, and required the bell of the switch engine moving the same to be rung before making the coupling and while moving such cars, and required employés operating the switch engine, before moving cars standing upon that track, to warn all persons engaged in repairing or in working under or about such cars of the intention to move the same by passing along such cars and uttering loud vocal warnings, and by ringing the bell and blowing the whistle of the engine, and that ordinary care and the rules of the defendant required all couplings to be made gently and without unnecessary force, violence, or speed. In doing the repairing referred to, the plaintiff was required to work under the car, and he alleged in his petition that he went in between two cars to the place where he had to go to fasten the new bolts, and that after he had finished his work, and was in the act of going out between the cars, the defendant's employés engaged in operating a switch engine in the yard without conforming to the rules and exercising the care above referred to ran the engine against one end of the string of cars with great speed, force, and violence, and, because of defendant's negligence in not having the brakes locked on the cars, the same were caused to be suddenly and rapidly moved, that such movement caused the plaintiff to be thrown against the end of one of the cars, and to fall to the ground with one leg across one of the rails, and, before he could remove his leg from that position, a wheel of one of the cars ran over it and crushed it.

Defendant by a second amended original answer presented a general and various special demurrers, a general denial, and specially pleaded that plaintiff had been working in its yards for some 2½ years as a car cleaner and car repairer, and as a car repairer for several months at the time his injury was received; that during all of this time the defendant had enforced a rule designed for the protection of car cleaners and car repairers, requiring employés working about its cars to see that proper blue signals were displayed, and a further rule reading as follows: "If your duties require you to go around, under, or on cars on any track, protect yourself with blue signals"; and that its rules further provided that flags of the prescribed color were to be used by day and lamps of the prescribed color by night in displaying signals; that the rules of defendant further provided that a blue flag by day and a blue light by night displayed at one or both ends of a car or train indicated that there was a workman under or about it; and that it must not be coupled or moved until the signal was removed, and that only the workman who displayed the signals was authorized to move it, and that the signals were required to be closely observed and obeyed; that these rules and regulations were designed for the protection of car repairers, and that plaintiff and the engineer and fireman and switchmen of defendant operating the switch engine at the time of the injury were familiar with these rules, and were required to and did observe them in the doing of their work; that on the occasion in question the plaintiff removed the broken draft-bolts, and then went inside of the car and drew new bolts through its flooring, and then went under the car for the purpose of fastening the under end of these bolts so that they would remain in place, and that, in order to do this work, it became necessary for him to get down under the west end of the car within about one foot of the wheels of its west truck; that he did this without putting out the blue signal required, or indicating in any way to the engineer or switching crew at work in the yards that he was in this dangerous position, thereby taking no precaution required by said rules and regulations to protect himself against the danger of this employment; that the track on which the cars stood was being constantly used in switching and moving cars back and forth in the process of loading and unloading them and making up trains, and that plaintiff was aware of this fact, and of the fact that the cars were likely to be moved at any time, and that, while he was so employed beneath said car, the switch engine, coming from the east, ran against the string of cars, no blue signal being displayed on any of them, and there being nothing to indicate plaintiff's dangerous situation; that it was impossible for anyone on the engine to see plaintiff as it approached the string of cars, or to know that he was under them, and that plaintiff was guilty of contributory negligence by virtue of these facts, and because of his violation of the well-known rules and regulations of the company.

Defendant further answered that it was his duty to have the brakes set, or to have warnings given to persons working under or between the cars before moving same, these duties were not customarily performed by defendant and its employés, and that the use of the blue signal was the protection relied upon by car repairers, and that the plaintiff was well aware of that fact when he went under the car to do the work in question, that the duties above referred to were customarily omitted, and that he assumed the risks incident to the work, in the absence of the observance of such duties. Defendant further claimed that the injuries were directly and proximately caused by dangers necessarily incident to the character of employment which plaintiff had undertaken.

The first five assignments relate to the action of the court in overruling certain special exceptions to the plaintiff's petition. In pleading written or printed rules promulgated by the defendant, we do not think the plaintiff should be required to set out such rules in hæc verba, and that it was sufficient to state their substance and meaning. Nor do we think error was committed in not striking from the plaintiff's petition the allegation that the defendant owed certain duties to the plaintiff and other employés. No question was submitted to the jury concerning other employés, and we do not believe that the incidental reference to them in the plaintiff's petition resulted in any harm to the defendant. This disposes of the assignments referred to.

The assignments of error from the sixth to the sixteenth, inclusive, relate to the action of the court in admitting testimony which was objected to. We have reached the conclusion that most of the testimony referred to was not subject to the objections urged against it. Some may have been objectionable, but the same facts were proved by other witnesses whose testimony was not objected to.

We overrule the seventeenth assignment, because we are of opinion that the language of the plaintiff's attorney therein referred to was not improper.

Assignments running from the eighteenth to the twenty-sixth, inclusive, are addressed to the action of the court in giving and refusing instructions. It would...