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

• Decision Date: 27 March 1909
• Citation: 118 S.W. 596
• Parties: HOUSTON & T. C. R. CO. v. SHAPARD.<SMALL><SUP>†</SUP></SMALL>
• Court: Texas Court of Appeals

118 S.W. 596

HOUSTON & T. C. R. CO. v. SHAPARD.^†

Court of Civil Appeals of Texas.

March 27, 1909.

Rehearing Denied April 15, 1909.

COPYRIGHT MATERIAL OMITTED

Appeal from District Court, Harris County; Norman G. Kittrell, Judge.

Action by Charles P. Shapard against the Houston & Texas Central Railroad Company. Judgment for plaintiff, and defendant appeals. Affirmed on condition.

Baker, Botts, Parker & Garwood and Lane, Jackson, Kelley & Walters, for appellant. O. T. Holt and Lovejoy & Parker, for appellee.

REESE, J.

This is a suit by appellee against appellant to recover damages for personal injuries alleged to have been received by him as the result of a collision between an engine on which plaintiff was riding, and on which he was employed as fireman, and another engine on defendant's railway line. It was alleged by plaintiff that the accident, which was the occasion of his injuries, was caused by the engine on which he was fireman, and on which he was riding, leaving the main track and colliding with an engine attached to a freight train standing on a side track, and that the switch leading from the main track to the siding had been left open through the negligence of defendant's agents and servants. Defendant pleaded general denial and assumed risk. Upon a trial with a jury, there was a verdict for plaintiff for $25,000, and from the judgment this appeal is prosecuted.

The facts with regard to the accident, as disclosed by the evidence, are as follows: Appellee was in the employ of appellant as a fireman on a passenger engine, which, with its train of 10 cars, left Houston, north bound, at 9:20 o'clock p. m. on December 18, 1906. The train, which had been running at a speed of about 60 miles an hour, when approaching the station at Thornton, slowed down to about 30 miles an hour, and was running at about this speed, approaching the station. When the engine got within about 50 yards of a switch just south and a short distance from the station, the engineer discovered that the switch was open. An engine attached to a south-bound freight train was standing on the side track into which the switch led, and about 75 feet from the switch. The passenger engine plunged through the open switch into the freight engine. Appellee, who had just previously been engaged in testing the water in the boiler of his engine, had just gotten back into his seat on the left side of the cab when the engineer exclaimed that the switch was open. He tried to get through the window in front of the cab, intending to get out on the running board alongside of the boiler and jump from there to the ground; but his clothing caught, and when the collision occurred he was thrown back into the cab, and caught in some way, and his leg broken, and from there he was thrown to the ground, where he lay until some one came to his relief and carried him to a place of safety. An oil tank car was next to the freight engine, and in some way the oil escaped therefrom and covered the ground. This oil caught fire, and appellee suffered some injuries by being burned before he was removed. Both of the bones of his leg were broken between the knee and the ankle. The passenger train was due to arrive at Thornton at 2:30 a. m., but was about 13 minutes late. The evidence justifies the conclusion that the freight train south bound arrived at Thornton, finished the switching, and went in on the siding a few minutes earlier. One Maddox was the head brakeman of the freight train, and in the discharge of his duties as such he opened the switch to let the freight engine in on the siding. It was his duty to then close the switch, "lining it up" for the main line for the passage of the northbound passenger train then due. He testified: That he closed the switch and locked it securely after the freight engine passed into the siding, and then went up to the station, lay down, and went to sleep; that, when the passenger train approached, the conductor sent him down to the freight engineer, who with his fireman had remained on his engine, with orders; and that as he was standing by the freight engine the passenger train came in and the engine crashed into the freight engine. Whether Maddox closed the switch, and it was afterwards opened by some unauthorized person before the arrival of the passenger train, or failed to close it, was the issue upon which the case turned. It was further charged, however, by plaintiff, that, if Maddox closed the switch, appellant, its agents and employés were guilty of negligence in failing to see that it was kept closed until after the passage of the passenger train. The headlight of the freight engine, as was customary in such cases, after it passed into the siding, was covered so that it gave no light in the direction of the passenger engine. When the engineer of the passenger train discovered that the switch was open, he did everything possible to prevent the disaster, but it was impossible to materially check the speed of the train in the short distance intervening. He could not have discovered the open switch in time to avoid the disaster. When the freight engine went in on the siding, it stopped at a distance of certainly not more than 75 feet (appellee testified about 30 feet) from the switch, and both the engineer and his fireman remained on the freight engine up to the moment of collision. The switch was unquestionably open when the passenger train struck it. There was some evidence that, when examined after the accident, the switch lock was gone, and some evidence that after the accident Maddox went to the switch stand, and was heard trying to throw it back, or "fooling with it," which was denied by him. It would have required considerable force and violence to break the lock, and it could not have been done without being heard by the engineer and fireman on the freight engine. The evidence fully authorized a finding that Maddox was mistaken about having closed the switch after the freight train went into the siding. The injuries received by appellee were permanent and serious. The court submitted to the jury the issues of negligence of appellant in leaving the switch open, and also in failing to use proper care to keep it closed, and the issue of assumed risk on the part of appellee.

By its first assignment of error, appellant assails the following charge given by the court: "Guided by these instructions, if you believe from a preponderance of the evidence that the said switch being open, and said train being so deflected, was the result of the negligence of defendant's servants and employés in not properly closing the switch, or in not keeping the same closed; and further believe that plaintiff's injuries, if any, were the direct result of the negligence, if any, of defendant's servants and employés in regard to said switch, and that he did not assume the risks, then you will find for the plaintiff, and assess his damages as hereinbefore instructed." The first objection to this charge is that it assumes that appellant's servants and employés were guilty of negligence "in not properly closing the switch." We think this is not a fair criticism of the charge. Standing alone, the jury could not have so understood it. If there were any doubt, however, on this point, it is relieved by reference to paragraph 4 of the charge immediately preceding, whereby the jury was instructed that the burden of proof was upon appellee to prove by a preponderance of the evidence that he was injured as the direct result of the "negligence" of appellant, and to paragraph 6, immediately following the paragraph containing the charge objected to, that, if the jury believed that the switch being open was not the result of the negligence of appellant's servants or employés, to find for appellant. The jury was carefully told to construe all parts of the charge together. It must have been understood by the jury that negligence vel non in the matter of the open switch was a matter to be determined by them. One part of the charge may be looked to for the purpose of qualifying another. Baker v. Ashe, 80 Tex. 361, 16 S. W. 36; Railway v. Matulla, 79 Tex. 581, 15 S. W. 573.

There is no merit in the second objection to this charge, that it submitted to the jury the issue of negligence of appellant's employés in not "properly" closing the switch. In support of this objection, it is urged that there was no allegation in the petition that the switch was not "properly" closed, only that it was not "closed." The evidence did not present any ground for a distinction between "closing" and "properly closing" the switch. If it was not "properly closed," it was not closed.

The third proposition under this assignment presents the same objection, with the added qualification that there was no evidence that the switch was not "properly closed." The proposition that it is error to charge upon an issue not presented by the pleadings, or upon which there is no evidence, is sound; but it has no application here. The substance of the issue, as stated by the charge, was presented by both the pleadings and evidence.

The fourth objection to the charge is that it assumes the negligence of defendant's employés in not keeping the switch closed; whereas, there was no evidence tending to show that there was any duty imposed on said employés to see that the switch was kept closed, after it was once closed and locked. Certainly this was not assumed by the charge, but the issue was submitted. We are not prepared to say that, in the circumstances of this case, the duty did not rest upon the employés of appellant to use ordinary care to see that the switch was kept closed until the passing of the passenger train, for the protection of the freight train as well as the passenger train. The freight engine was just inside of the switch not more than 75 feet away, according to Maddox's testimony, 30 feet according to that of appellee. The passenger train was due then and must have been...