International-Great Northern R. Co. v. Hailey

• Decision Date: 14 July 1928
• Docket Number: (No. 670.)
• Citation: 9 S.W.2d 182
• Parties: INTERNATIONAL-GREAT NORTHERN R. CO. v. HAILEY.
• Court: Texas Court of Appeals

9 S.W.2d 182

INTERNATIONAL-GREAT NORTHERN R. CO. v. HAILEY.

(No. 670.)

Court of Civil Appeals of Texas. Waco.

July 14, 1928.

Rehearing Denied September 20, 1928.

Appeal from District Court, McLennan County; Sam R. Scott, Judge.

Suit by W. A. Hailey against the International-Great Northern Railroad Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Taylor, Atkinson & Farmer, of Waco, for appellant.

Witt, Terrell & Witt, of Waco, and Miller & Godfrey, of Dallas, for appellee.

BARCUS, J.

Appellee instituted this suit against appellant to recover damages for injuries which he suffered while performing his duties as a brakeman in appellant's employ. He alleged that the injury was caused by an inefficient brake on a certain car, which, while in his line of duty, he was attempting to stop, and that as a result thereof he was permanently injured in the lower part of his back, in the lumbar and sacral regions, and in the left sacro-iliac joint. The cause was tried to a jury, submitted on special issues, and resulted in a judgment being entered for appellee for $17,500.

It appears from the record that appellee had been working for different railway companies in the capacity of a brakeman for 25 years, and had been working in the same capacity for appellant since 1912. At the time appellee received the injury complained of, he was performing his duties as brakeman in the switchyards in the town of Mart. A certain refrigerating car containing an interstate shipment was thrown onto a side track, and, as it was his duty to do, appellee climbed on said car to set the brake and stop said car. He testified that when he attempted to stop the car the brake would not work; that he attempted several times to make it work, and it hung; that he finally braced himself on the top of the car, and while straining with all his force, attempting to get the brake to work, so he could stop the car, which was rapidly increasing its rate of speed, the car lurched, and the brake suddenly gave way, and he was thrown around the brake, and was twisted in such way as to cause the injuries of which complaint was made.

Appellant by a number of propositions complains of the trial court's refusal to instruct the jury to return a verdict for it, and of the refusal of the court to set aside the findings of the jury and the judgment rendered thereon, because same are overwhelmingly against the preponderance of the evidence. We overrule these propositions. The statement of facts embraces 416 pages, and we think unquestionably raised the issues submitted, and was sufficient to sustain the jury's findings. The record shows that appellee, when a child, had a fall and broke his leg, and as a result thereof one leg was a little shorter than the other. He was required to and had stood several medical examinations before he began working at different places for appellant. The doctor for appellant, who examined appellee, testified he made a rigid examination, because it took a sound man to perform the work of a brakeman. For more than 12 years appellee had been working almost daily for appellant in the same capacity, and had been doing his work efficiently and well. Appellee testified he was familiar with the handling and setting of brakes on a car, and that the brake in question was not in good order; that same would not work; that it hung; that after the accident he examined same, and found the chain rusty; that he could not turn the brake by ordinary methods. The evidence shows that after the injury appellee was in a hospital of appellant for a large portion of about 12 months' time; that numerous examinations were made, and he was by appellant's physicians given an iron brace to wear, in order to be able to walk with any degree of comfort. After the injury complained of he was entirely unfitted for the work which he had been performing during the past, and was totally unable to perform the services of a switchman or brakeman on a railway. Under article 8618, U. S. Compiled Statutes (45 USCA § 11), appellant as a railway company was required to equip all cars used by it in the transportation of interstate business with efficient brakes. Our courts have uniformly held that, where an employé suffers an injury by reason of inefficient brakes, the railway company is liable for the damages suffered by reason thereof. Spokane Railway Co. v. Campbell, 241 U. S. 497, 36 S. Ct. 683, 60 L. Ed. 1125; Payne v. Connor (C. C. A.) 274 F. 497; St. L. S. W. Ry. Co. v. Pyron (Tex. Civ. App.) 278 S. W. 270 (error dismissed), and authorities there cited.

Appellant complains of the refusal of the trial court to submit a special issue to the jury which it tendered, in which it was asked, in effect, whether the abnormal physical condition of appellee prior to the accident was the sole proximate cause of the accident. We overrule this proposition. There was no evidence raising said issue. The testimony of the doctors was that appellee had abnormal conditions in the lower portion of his back and in the lumbar and sacral regions, and some of the doctors testified that in their opinion it was congenital, and some that those conditions might have been caused by reason of his leg having been broken when a child, and his having gone through life with one leg shorter than the other, and some that the condition was caused by the injury complained of. The evidence, however, shows without dispute that appellee had been working for different railroads in the capacity of switchman and brakeman...