Houston, E. & W. T. Ry. Co. v. McHale

Decision Date05 November 1907
Citation105 S.W. 1149
PartiesHOUSTON, E. & W. T. RY. CO. v. McHALE et al.<SMALL><SUP>*</SUP></SMALL>
CourtTexas Court of Appeals

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

Action by Mrs. Margaret McHale and others against the Houston, East & West Texas Railway Company. From a judgment for plaintiffs, defendant appeals. Affirmed.

Baker, Botts, Parker & Garwood and Lane, Jackson, Kelley & Walters, for appellant. Lovejoy & Parker, for appellees.

PLEASANTS, C. J.

On August 25, 1905, John J. McHale, while in the employment of defendant as foreman of a switching crew engaged in switching cars in appellant's yard at Houston, received injuries to his person by being struck by a door which fell from one of the cars in said yard, and as a result of said injuries his death occurred in a few minutes. This suit was brought by appellee, Margaret McHale, the widow of said John McHale, for herself and as next friend of seven minor children of the deceased, named in the petition, to recover the damages sustained by herself and said children by reason of the death of said McHale, which they allege was caused by the negligence of the appellant. The grounds of negligence alleged are: First, that said car and door were not provided with proper and necessary appliances to hold the door in position, or, if provided with such appliances, then the same were in an unsafe and defective condition; second, that the employés in charge of the train of which said car was a part set the same in motion with a sudden jerk, and thereby imparted to said car an unnecessary jar, which caused the door to fall. The defendant answered by general demurrer and general denial, and by pleas of assumed risk and contributory negligence, and further pleaded that, if defendant was negligent as charged by plaintiff, such negligence was not the proximate cause of the injuries received by McHale, and defendant cannot be held liable therefor. The trial in the court below resulted in a verdict and judgment in favor of plaintiffs in the sum of $16,500.

The only issue of negligence on the part of appellant submitted to the jury was predicated upon the first ground of negligence alleged in the petition.

The evidence shows that at the time of his injury deceased was in the employment of defendant as foreman of a switching crew, and on the day he was injured, and during the time immediately preceding the accident, was engaged in switching cars and making up trains in defendant's yard in the city of Houston. The crew, which was working under his direction, consisted of an engineer, fireman, and two brakemen. There were a number of tracks in the yard, and one of them was occupied by a train which had just been made up by McHale's crew, and was about ready to start out on the road. This train was composed of 40 or 50 freight cars. After this train was made up the work of the switching crew had to be suspended until the train pulled out, as the next work to be done required the use of the track upon which said train was standing. When this condition arose McHale informed his men that the work would be suspended until the train before mentioned moved out. At the time this occurred deceased was near the switch engine, which was on a different track from that on which the out-going train was standing, and about 300 feet distant therefrom. After giving these directions he walked over to the train, and sat down near the track in the shade cast by a large box car in said train. He was soon joined there by C. F. Strange, fireman of the switch engine, and the two sat there engaged in conversation for a short time. They were expecting the train to start at any time. Just before the accident occurred Strange got up and started to his engine. After going a short distance he looked back and saw McHale reclining on his elbow with his back to the train. In a few seconds after this the train started, and he heard an alarm given by the brakeman on the train for the purpose of notifying the crew that an accident had occurred. He went immediately to McHale, and found that the door of the box car by which he was reclining had fallen off the car and struck him upon the head and breast. McHale was unconscious when Strange reached him, and died in about 10 minutes. The brakeman upon the train saw the door fall from the car and strike McHale. He tried to warn him, but could not do so in time to prevent the accident. The car from which the door fell belonged to a connecting carrier of appellant, and when it came into the yard the day before the door was off and lying on the floor of the car. This door was hung to the car at the top by fasteners which worked on rollers placed in a gutter-shaped track. This track ran back from the opening for a distance equal to the width of the door and was supported by brackets. At the end of the track a block was fastened to the car to prevent the door from sliding off when it was pushed back in opening it. When this car was examined on the day it came into the yard the rollers were gone, several of the brackets which supported the track were missing, and the track was sagged down to a considerable extent, and the block at the end of the track was partially gone, and the portion which remained was rotten. The inspector marked the car "bad order," and directed the car repairer to fix it. The car repairer testified that he got rollers and replaced the door on the track, and drove some nails in the block at the end of the track. He did not raise the sagged places in the track or put any brackets on to replace those which were missing, and he testified that the nails he drove in the stop-block did very little good because of the decayed condition of the portion of the block that was left. The brakeman who saw the accident testified that just as the train started he saw the door fall and strike McHale, and that it fell down from the top, the bottom edge striking the deceased across the face and breast. The marks upon deceased show conclusively that the door struck him in this way. There is no evidence that the train was started with any unusual jerk. We conclude from this testimony that the fall of the door was due to the defective condition of its fastening; that these defects were known to appellant's employés charged with the duty of discovering and repairing them; that said employés were guilty of negligence in failing to make the proper repairs, and such negligence was the proximate cause of McHale's death.

The first assignment of error presented by appellant is as follows: "The court erred in overruling the motion for new trial on the ground that the verdict of the jury was contrary to the law and the evidence, in this: That, according to the undisputed evidence, the deceased, J. J. McHale, at the time and place of his injury, was not in the performance of any duty to defendant as a servant, and was not occupying any position or attitude necessary or incident to the performance of his duty to defendant as a servant, and was not injured as a proximate result of defendant's failure to furnish reasonably safe appliances and machinery or a reasonably safe place in which for him to work as a servant." The fact that the deceased was not in the active performance of the duties of his employment at the time he was injured cannot relieve appellant from liability. Pretermitting for the present a discussion of the issues of assumed risk and contributory negligence, the evidence shows that deceased was rightfully in appellant's yard and near its track, and if not negligent himself in assuming the position he did near said track, and he did not assume the risk of being struck by the failing car door, appellant owed him the duty of exercising ordinary care to prevent injuring him. Ry. Co. v. Welch, 72 Tex. 302, 10 S. W. 529, 2 L. R. A. 839; Ry. Co. v. Scott, 71 Tex. 710, 10 S. W. 298, 10 Am. St. Rep. 804. In the first case cited the plaintiff, who was foreman of a bridge gang, was asleep at the time of his injury in a car on a side track provided by the company for that purpose. While thus resting he was injured by the negligence of other employés of appellant who were operating a train over the road. Under these facts our Supreme Court held that plaintiff was on duty at the time he was injured, and therefore the doctrine of fellow servants, as then enforced in this state, was applied, and recovery denied on the ground that the injury was due to the negligence of a fellow servant. In discussing the question in that case Judge Gaines says: "He was liable to be called upon at any moment to go out with the gang upon duty upon the road. We think he must be held to have been upon duty at the time he received the injury. That the accident occurred when he was resting from his labors we think makes no difference. He was subject to the call of the company at the time, and his case differs from that of other servants who engage for certain hours of employment, and who are injured during the interval in which the master has no claim upon their services." If in the case cited the plaintiff was in the performance of his duty at the time he was injured, the deceased in this case, while waiting beside the track upon which he was to resume work, must be held to have been in the performance of duty, and appellant would be liable if it failed to use ordinary care to render the place in which he was so waiting reasonably safe and he was injured as a result of said negligence.

The proposition and argument of appellant submitted under this assignment are predicated upon the assumption that the condition of the car door only rendered it unsafe to a person occupying the position in which deceased placed himself, which appellant claims was one of unusual danger. We do not think this assumption finds any support in the evidence. Of course the accident would not have occurred just...

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