Hudgins v. Kansas City, M. & O. R. Co.

• Decision Date: 22 December 1927
• Docket Number: (No. 7137.)
• Citation: 2 S.W.2d 958
• Parties: HUDGINS et al. v. KANSAS CITY, M. & O. R. CO. et al.
• Court: Texas Court of Appeals

2 S.W.2d 958

HUDGINS et al. v. KANSAS CITY, M. & O. R. CO. et al.

(No. 7137.)

Court of Civil Appeals of Texas. Austin.

December 22, 1927.

Rehearing Denied January 18, 1928.

Appeal from District Court, Tom Green County; J. F. Sutton, Judge.

Action by Mrs. N. C. Hudgins and others against the Kansas City, Mexico & Orient Railroad Company and another. Judgment for defendants, and plaintiffs appeal. Affirmed.

Glenn R. Lewis and J. A. Thomas, of San Angelo, for appellants.

James Cornell, Collins, Jackson & Snodgrass, of San Angelo, for appellees.

McCLENDON, J.

The appellees Kansas City, Mexico & Orient Railroad Company and Gulf, Colorado & Santa Fé Railroad Company will be referred to respectively as the Orient and Santa Fé. On the night of March 17, 1922, N. C. Hudgins, at the time a freight brakeman in the employ of the Orient, while engaged in a switching operation at Sweet-water, was run over and received injuries, including the loss of a foot, resulting in his death. The suit was by his widow for herself and as next friend and guardian of her minor children, and by two adult children, against both companies for compensatory damages occasioned by the death of Hudgins. The trial was to a jury and the judgment was in favor of both defendants under a directed verdict. The plaintiffs have appealed, but the correctness of the judgment in favor of the Santa Fé is not questioned.

The theory of plaintiffs' case was that Hudgins met his death by getting his foot caught in an unblocked frog in which position he was held until run over, that he was engaged in exclusively intrastate commerce at the time, and that the failure to provide a blocked frog and to properly light the premises was negligence; the issue of assumed risk being governed by Revised Statutes, art. 6437.

Three contentions are urged by the Orient in support of the trial court's action in directing a verdict in favor of that company: First, that the evidence will not support a finding of negligence in not providing a blocked frog; second, that the evidence will not support a finding that Hudgins sustained the injuries from which he died in the manner alleged by plaintiffs; and, third, that Hudgins was at the time engaged in interstate commerce; that he assumed as a matter of law the risk incident to the manner in which he was injured, and therefore recovery is precluded under the Federal Employers' Liability Law (45 USCA §§ 51-59 [U. S. Comp. St. §§ 8657-8665]).

Briefly summarized, the controlling facts upon the issue of the character of commerce (whether inter or intra state) in which Hudgins was engaged follow:

The Orient has a line of railway extending from Alto, Okl., to San Angelo, Tex., and beyond. Between these points is Sweetwater, Tex., at which there is a connecting track with the Santa Fé. There the Orient's main line runs in a southwest northeast direction; the Santa Fé is to the south or east; the connecting track extends from a point on the Orient in a northeast direction to the Santa Fé. There is a track called the east Sweetwater siding, extending from this transfer track in a northeasterly direction and paralleling the Orient main line. The train involved was made up at Alto and was bound for San Angelo. At a division point (Hamlin, Tex.) engines and crews were changed, and there Hudgins became a member of the crew. The train contained a car of cement, consigned to a point in Arkansas and routed via the Orient to Sweetwater, and thence to destination via the Santa Fé and Missouri Pacific. Next to the engine were two empty tank cars, used for hauling water and employed at the time in exclusively intrastate commerce. These cars had to be cut out of the train at Sweetwater and left on the east Sweetwater siding. Hudgins was engaged in this operation at the time of his injuries. Upon arriving at Sweetwater, the train was stopped a short distance east or north of the Santa Fé transfer switch. The engine was uncoupled and attached to some cars on the transfer track that were blocking the Sweetwater siding. These cars were moved onto the main line, attached to the tank cars, the latter uncoupled from the rest of the train, moved forward beyond the transfer switch and kicked back so as to roll by the momentum onto the transfer track, and thence to the east Sweetwater siding, where they were to be left, with the brakes set. In order to effect this movement, the switches at the transfer track, Orient junction and at the transfer track, east Sweetwater siding junction, had to be set and it was Hudgins' duty to perform these acts. There was no eye-witness to Hudgins' injuries, and the manner in which they were brought about can only be inferred from circumstances. He was found lying by the frog at the intersection of the north or west rail of the Sweetwater siding and the south or east rail of the Santa Fé transfer track. One foot was cut off and his body lay with his foot near the frog and his head at the guard rail of the north or west rail of the Santa Fé transfer track. There was blood on the wheels of the tank cars and marks on the shoe on the injured foot, from which the witnesses drew the inference that this foot was caught in the frog at the time he was run over. It was one of the duties of Hudgins in connection with this train movement to...