Houston & T. C. Ry. Co. v. Strycharski

• Decision Date: 22 March 1894
• Citation: 26 S.W. 253
• Parties: HOUSTON & T. C. RY. CO. et al. v. STRYCHARSKI.<SMALL><SUP>1</SUP></SMALL>
• Court: Texas Court of Appeals

26 S.W. 253

HOUSTON & T. C. RY. CO. et al. v. STRYCHARSKI.¹

Court of Civil Appeals of Texas.

March 22, 1894.

Appeal from district court, Harris county; James Masterson, Judge.

Action by Martin Strycharski against the Houston & Texas Central Railway Company and others. Judgment for plaintiff. Defendants appeal. Reversed.

Baker, Botts, Baker & Lovett for appellants. Goldthwaite, Ewing & H. F. Ring, for appellee.

WILLIAMS, J.

This is an appeal from a judgment in favor of appellee against appellant for damages for a personal injury received by the former while in the service of the latter, through its alleged negligence. Stated briefly, but sufficiently for the purposes of the decision, the circumstances under which appellee was hurt were as follows: He was engaged in filling with water a tank in one of a train of cars in the yard at Houston, and for this purpose was standing upon a ladder which leaned against the side of the car, holding a hose, through which the water was running from a hydrant into the tank, at a hole in the roof of the car, when other cars were pushed up by the switch engine, and coupled to the rear car of the train, with such force as to upset the ladder, and throw him to the ground. According to his testimony, he was bending forward over the roof of the car, looking into the tank, so as to see when it should be full, and neither saw nor heard the other cars approaching. From this position, he states, he could not have seen or heard the approach of the switch engine pushing the cars; but he also says that he neither looked nor listened. All of the other witnesses, both for plaintiff and defendant, testified that, standing as he stood on the ladder, he could, had he looked, have seen the cars coming; and most of them stated that, had he listened, he could have heard them. We understand him to mean that he could not see or hear them as he leaned forward looking into the tank, and it seems apparent from the evidence that he could have seen them had he taken the precaution to look. There is no reason indicated by the evidence why he could not have done so. In filling the tank, he had only to hold the hose, and let the water run. He could know when the tank was full without leaning forward to look into it, and, if it overflowed, no harm would have resulted, as it would simply have run out on the roof of the car. But, conceding that it was proper for him to look into the tank, it required only a momentary glance, and it was not necessary that he should continue looking so long as to allow the engine to come from the side track upon that where he was at work, and to approach and strike the train unseen by him. There was nothing in the work which he was doing which prevented him from looking for the approach of the cars, if it was otherwise required that, in the exercise of proper care, he should do so. It had always been the custom, when that train arrived, to take out one of the cars, and leave it on another track in the yard. This was done by uncoupling the car to be taken out from the one in front of it, and drawing it, along with those behind it, with the engine, upon the side track. There it was uncoupled and left, and the remaining cars were brought back and recoupled to the train. This switching, as well as the filling of the tank with water and the cleaning out of the coaches, had all to be done in the 20 minutes during which the train remained at the depot. Appellee had known of this custom for several years, and had been engaged for at least a week in supplying the water and cleaning out the cars while the switching was being done. On the night when he was hurt, he knew that the engine had taken out the cars, and might be expected to come back to make the coupling. When the cars moved back, two switchmen rode upon the end of the coach which was nearest to appellee, with lights in their hands, and, before they reached the standing cars to which the coupling was to be made, one of them descended to the ground, and, with his lantern, gave signals to the engineer to slow up, in order that the coupling might be made. The meaning of all such signals was known to appellee. In regard to these lights, one witness, it is true, says he saw none on the end of the coach, but whether he refers to the standing or the moving coach the record does not enlighten us. There was evidence as to the propriety of having lights on both. Admitting that he refers to the...