Hullum v. St. Louis Southwestern Ry. Co.

• Citation: 384 S.W.2d 163
• Decision Date: 05 November 1964
• Docket Number: No. 67,67
• Parties: Mrs. Adelle HULLUM, Administratrix, et al., Appellants, v. ST. LOUIS SOUTHWESTERN RAILWAY COMPANY, Appellee.
• Court: Court of Appeals of Texas. Court of Civil Appeals of Texas

Page 163

384 S.W.2d 163

Mrs. Adelle HULLUM, Administratrix, et al., Appellants, v. ST. LOUIS SOUTHWESTERN RAILWAY COMPANY, Appellee.

No. 67.

Court of Civil Appeals of Texas, Tyler.

Nov. 5, 1964.

Rehearing Denied Dec. 3, 1964.

George L. Schmidt, Schmidt & Garrett, Houston, McLendon & Tyner, Tyler, for appellants.

Jack W. Flock, Ramey, Brelsford, Hull & Flock, Calhoun & Clark, Tyler, for appellee.

MOORE, Justice.

This suit was instituted by Adelle Hullum, Individually and as Temporary Administratrix of the estate of her deceased husband, J. T. Hullum, and also as Guardian of Richard Sidney Hullum and Cynthia Ann Hullum, seeking damages for the alleged wrongful death of J. T. Hullum under the Federal Employers' Liability Act, 45 U.S.C.A. Sec. 51 et seq. Upon trial of the cause, the jury returned a verdict for the defendant, St. Louis Southwestern Railway Company, and based upon the verdict the court entered a take-nothing judgment and the plaintiffs, hereinafter designated as Appellants, perfected this appeal.

As a basis for their cause of action, Appellants alleged in their pleadings that the injuries and resulting death sustained by the plaintiffs' decedent were caused by the failure on the part of the agents, servants and employees of the railroad to exercise due care for his safety in each of the following particulars: (1) in failing to furnish decedent with a safe place to work; (2) in failing to keep a proper lookout for decedent on the occasion in question; (3) in moving the cars at a speed in excess of that which an ordinary prudent person would have moved same; (4) in kicking the cars in question harder than a person of ordinary prudence would have kicked same; (5) in kicking the cars without having first determined that decedent was in a safe position aboard the car he was riding; and (6) in kicking the cars in question on a downgrade, all of which acts were alleged to be a proximate cause of the injuries and resulting death of J. T. Hullum. Appellee St. Louis Southwestern Railway Company denied the allegations and plead contributory negligence and unavoidable accident.

The evidence shows that at the time of the accident Appellants' decedent, J. T. Hullum, was a member of a switching crew working at his assigned duties with Appellee St. Louis Southwestern Railway Company at Appellee's Tyler, Texas, yard. On the morning of December 13, 1961, the railroad's company crew was engaged in a switching operation which, in the railroad industry, is commonly referred to as 'kicking cars,' which was shown to be a customary type of operation. In this type of operation the switch engine would push a number of cars forward until enough momentum was gained that the cars would move under their own power, at which time the switch engine would be slowed and the cars would be 'cut' or 'kicked' loose from those remaining attached to the switch engine, and would then roll on to the different side track to their previously designated location where the cars would then be stopped or 'spotted' by a member of the switching crew by the use of a handbrake. It was the duty of the decedent, J. T. Hullum, to ride the various 'kicked' cars to their designated location and to set the handbrake at the proper 'spot.' Just before the occurrence in question, cars were being switched out of Track No. 6; one car had been kicked, unmanned to Track 11; one car had been kicked, unmanned to Track 8; one car had been kicked to Track 6, on which switchman C. R. Strother rode to apply the brake, and then six cars were kicked to Track No. 9 on which Hullum was to ride and set the brake.

According to the testimony of C. R. Strother, a member of the switching crew, he was looking directly at Hullum when the accident happened. He testified that he saw Hullum mount the rear end of the leading box car and again observed him when he got to the top of the car. He then observed Hullum to take about three or four steps forward and then turn around and face the engine, appearing to have braced himself. That although it is the usual practice in the Tyler yard for the engine to stop after a kick has been made, the engine did not stop on any of the previous kicks and did not stop before kicking the cars on which Hullum was riding. According to his testimony, the switch engine kicked the cars out from under Hullum and he fell down between the cars. He testified that immediately thereafter he left the car which he was riding and went upon one of the cars on which Hullum had been riding and applied the handbrake and stopped the cars; he then went to Hullum and found him to be underneath one of the cars, but outside the track; that he was approximately 55 to 60 feet from the place where he fell between the cars, was bleeding profusely and seemed to be injured in the shoulder and appeared to have been dragged by the cars. An ambulance was called and he was immediately hospitalized.

He further testified that at the point where Hullum fell from the car, the grade of the track descended in the direction in which the cars were moving, and that under such circumstances it is not ordinarily necessary to kick the cars because they will move under their own momentum; that it was the usual custom in Tyler yard for the engine to kick the cars and then stop before kicking other cars, but on this occasion the switch engine did not stop before kicking the cars upon which Hullum was standing. However, the kick was accomplished in an ordinary manner and there was no rule or regulation requiring the engine to stop before kicking. According to his testimony, it is the duty of the engine foreman to see that his men are in a safe position before kicking movements are made.

L. C. Foster, another member of the switching crew, testified that he had pulled the pin to cut loose the six cars on which Hullum was riding, and that there remained eleven cars between him and the switch engine at that time. He testified that the side tracks were so arranged that it was not necessary for the switch engine to stop in order to make the previous kicks on the side track, but same could be accomplished by bumping or kicking the cars and then slowing down; that this was the method used on this occasion; that Mr. W. B. Bradley gave the kick signal at which time the cars were traveling three or four miles an hour; that he did not know the whereabouts of Hullum at that time and did not see him fall.

The engineer, C. H. Bivins, testified that at the time of the incident the switch engine was proceeding between three and four miles an hour on a descending grade; that upon receiving the kick signal from Bradley, he momentarily accelerated the throttle so that the sudden thrust of power from the engine would bump the cars together so that the tension on the pin connecting the coupling between the cars could be released, permitting the pin to be pulled so that the cars could be uncoupled as they moved down the track; that the momentary acceleration of the throttle would have probably increased the speed of the engine to seven or eight miles per hour had the acceleration been maintained. He testified that he did not see Hullum at the time of the kick signal nor at any time thereafter. He further testified that the kicking operations on this occasion were made without stopping; that there was no rule requiring the engine to stop before a kicking operation, and that it is safer on a downgrade track to move the cars in and spot them while attached to the engine rather than kick them.

The engine foreman, W. B. Bradley, testified that he was the foreman in charge of the switching crew, and that he was responsible for the safety of the equipment as well as the safety of the men. It was his duty to give the engine all signals in connection with the switching operation; that he had given the engineer the signal to kick the cars on which Hullum was riding; that on this occasion it was necessary to kick the cars somewhat harder than usual because of the fact that in cold weather the cars will not roll as freely as in warm weather, but that the cars on the occasion in question did not exceed a speed of between four and six miles per hour. He testified that at the time the signal was given he did not have Hullum in his view because Hullum had crossed over the track ahead of the cars in order to align the switch and was, therefore, on the opposite side of the train from him; that he did not see Hullum when he reached the top of the car because of the fact that he was standing on the ground near the cars and could not, therefore, see on top of the cars. He further testified that although it was not the custom in the Tyler yards to bring the train to a complete stop before a kicking movement was made, it was done most of the time when such movement was made on a downgrade; that it was his duty to see that the men were in a safe position before a car was kicked, and that although there was nothing unusual about the kicking operation, it would have been safer to have shoved the cars to the desired location rather than to have kicked them.

The hospital records introduced by Appellants from the files of the St. Louis Southwestern Railway Lines Hospital where Mr. Hullum was treated contains a history of the injury related by Mr. Hullum upon his arrival there on December 22, 1961. The history related by him was as follows:

'Present Illness: The patient gives a history of injury on December 13, 1961, in the Tyler Yards. He was on top of a car (moving) trying to get from that car to the next. Then lost his balance. Fell between the 2 cars on the ground and apparently he was dragged for some distance before the cars came to a stop. Multiple injuries resulted.'

The medical testimony shows conclusively that death resulted from the injuries sustained by him on the occasion in question.

In response to the Special Issues submitted by the court, the jury found (1) that the members of the defendant's switching crew did...