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

• Decision Date: 18 February 1899
• Citation: 51 S.W. 506
• Parties: HOUSTON & T. C. R. CO. v. SMITH.<SMALL><SUP>1</SUP></SMALL>
• Court: Texas Court of Appeals

51 S.W. 506

HOUSTON & T. C. R. CO. v. SMITH.¹

Court of Civil Appeals of Texas.

February 18, 1899.

Appeal from district court, Dallas county; Edward Gray, Judge.

Action by Mrs. Josie Smith against the Houston & Texas Central Railroad Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Mrs. Josie Smith instituted this action against the Houston & Texas Central Railroad Company for the recovery of pecuniary damages suffered by her in the death of her husband, John H. Smith, whose death, she charges, was caused by the negligence of the defendant railway company. It is alleged that he was in the employ of the defendant company as brakeman, and while in the performance of his duties as such brakeman he was killed through negligence of the company. The defendant answered by general denial, plea of contributory negligence, assumed risk, and negligence of fellow servant, etc. The trial resulted in a verdict and judgment for the plaintiff in the sum of $7,500, from which the railway company has appealed. The evidence was fairly sufficient to show this state of facts: On the 8th day of January, 1895, John H. Smith was a brakeman in the employ of the defendant company. About 2 or 3 o'clock in the afternoon of that day, while engaged in doing some switching of cars in the yards of the company at the town of Bremond, Tex., he was knocked from the top of a car, upon which he was endeavoring to set a brake, by three other cars running against the one upon which he was standing; and he was thrown to the ground, and the three cars passed over his body, killing him instantly. He was braking upon a freight train going south, and his train arrived at Bremond about 10 minutes in advance of the north-bound passenger, and was backed into the passing track on the east side of the main track. A stock car was to be picked up here, and one car for Waco was to be dropped out and left. The stock car, called "4-C Stock Car," was standing on the extension track. The third car from the engine had a hot box on the arrival of the train, and one of the brakemen on the train (W. M. Byers) went immediately to the repair shop to get a man to repair the car. While he was gone upon this mission the rest of the train crew undertook the switching, under the directions of the conductor. The attempt was made to drop the second, third, and fourth cars from the engine in upon the extension track, and couple onto the stock car. The extension or switch track was constructed upon a down grade. The three cars were attempted to be thrown upon this track by making what is termed a "drop switch." The conductor pulled the pin cutting these cars loose from the train; and Smith, who was on the rear end of the coal car attached to the engine pulling the cars, and next to the cars to be dropped, pulled the pin cutting them loose from the motive power at the point of connection with the extension track; and the cars were thrown in upon the extension track without any one on them to control them, the other brakeman being engaged in setting the switch. They moved upon the down grade at a rapid rate,—witnesses say, at about the rate of eight miles an hour. Smith rode the coal car down the main line to a point nearly opposite the stock car, left the coal car, and ran to the stock car to set the brake on it. The loose cars struck the stock car once, and then Smith mounted the stock car; and just as he set the brake the loose cars struck it the second time, and knocked him off the car. Byers came out of the repair shop, 50 or 60 feet away, as the three cars were dropped in upon the extension track; and, seeing Smith running to the stock car, he ran to the loose cars, to mount them and set the brakes before they could strike the stock car. They struck the first time before he got upon the car, and he seized the brake and attempted to set it before the second collision. The brake was out of repair, and would not work, and he then ran to another car, but reached the brake too late to prevent the fatal collision. Had the brake of the car which he first mounted been in working order, he could have prevented the second collision, and the consequent injury and death of his fellow brakeman, Smith. As soon as the three cars were cut loose by the pulling of the pins by the conductor and the deceased, and were started in upon the extension track, the former left the cars, and started to the office to register, knowing that no one was upon these cars to control them. The evidence tended to show that the deceased was in the proper discharge of duty when injured, and was not guilty of any negligence contributing to his injury. The conductor and the deceased both gave signals to the engineer, in doing the switching; but the conductor was in control, and the deceased was subordinate and subject to his commands. There was evidence tending to show that the conductor knew that Byers had gone to look after the repair of the hot box, that the conductor assumed to do his work in the switching, and that he should have ridden the loose cars in upon the extension track, and controlled them. There was also evidence that the switching was attempted in a manner that was dangerous and wholly unnecessary.

R. De Armond, for appellant. Geo. H. Plowman, for appellee.

FINLEY, C. J. (after stating the facts).

1. It is first assigned as error that there was no evidence justifying the submission of issue of negligence on the part of the conductor in the part he took in the switching. This ground of negligence was distinctly set out in the pleading, and we are not able to say that there was a total lack of evidence tending to its proof.

2. It is claimed that the court should not have submitted the issue of defective brake, because the evidence showed that the accident did not occur by reason of a defective brake,—in other words, that the defective brake was shown not to be the proximate cause of the injury. The second collision of the cars threw the deceased from the stock car. This collision would not have occurred, had not the brake been defective. Byers would have set the brake and prevented the collision, had the brake been in working order. The defective brake was immediately connected with the accident, and, while there were antecedent causes with which it was associated, it was a proximate and effective cause; and the court properly submitted its determination to the jury.

3. Complaint is made at the refusal of special charge No. 2, upon the defensive issue of assumed risk. The charge of the court correctly instructed the jury upon this phase of the case, and it was not error, therefore, to refuse the special charge asked. Besides, we regard the form of the charge asked as objectionable.

4. It was not error to refuse special charge No. 6....