J. Rosenbaum Grain Co. v. Mitchell

• Decision Date: 07 December 1911
• Citation: 142 S.W. 121
• Parties: J. ROSENBAUM GRAIN CO. v. MITCHELL.
• Court: Texas Court of Appeals

142 S.W. 121

J. ROSENBAUM GRAIN CO. v. MITCHELL.

Court of Civil Appeals of Texas. Texarkana.

December 7, 1911.

Rehearing Denied January 4, 1912.

Appeal from District Court, Tarrant County; W. T. Simmons, Judge.

Action by John Mitchell against the J. Rosenbaum Grain Company. Judgment for plaintiff, and defendant appeals. Affirmed.

The main track of the Chicago, Rock Island & Gulf Railway Company in North Ft. Worth ran north and south. East of this track, and connecting with it, that company owned and used in the operation of its line of railway three other tracks, known as Nos. 1, 2, and 3. East of those three tracks, and connecting with them, appellant owned three tracks, known as Nos. 4, 5, and 6. No. 5 ran through a grain elevator owned and operated by appellant, and connected with the railway company's tracks to the north of the elevator, and also with its tracks to the south of same. Track No. 5 was on a grade inclining from north to south, so that cars moved on it north of the elevator, if not held by brakes or otherwise, of their own momentum would run down to and through the elevator and on to the south of same. It was used by appellant as an unloading track. A car to be unloaded at the elevator by an arrangement between appellant and the railway company would be set by the latter's switch engines on the track north of the elevator, and, when appellant was ready to unload it, the brakes thereof would be released, and the car started to moving. Appellant's employés would stop it in the elevator, unload it, and then start it to moving south. The practice was to stop and set two or three of the unloaded cars after they passed out of the elevator the desired distance south, and then to permit other cars as they were unloaded to drop down from the elevator of their own momentum and bump against the set cars, so as to shake loose grain lodged in portions of the cars, which could not be otherwise removed therefrom. When a number of the cars had been so unloaded and dropped down the track, they would be removed therefrom by the railway company's switch engines. Appellee was a car inspector in the employ of the railway company. A part of his duty, the jury might have found from the testimony, was to inspect and make light repairs of cars on track 5 after they had been unloaded. About 5 o'clock of the afternoon of a day in December, 1907, while appellee was under one of the unloaded cars which had been dropped down from the elevator, engaged in making a light repair on same, appellant permitted another or other unloaded cars to drop down from the elevator and to collide with the car appellee was under, causing it to move further south, and thereby to so injure appellee as to necessitate the amputation of one of his legs. Negotiations between him and the railway company afterwards resulted in the railway company's paying him $4,000, and his execution of a release as follows:

                         "Rock Island Lines
                "File No. A1568.      Southern Division
                         "General Release
                

"Whereas I, J. R. Mitchell, of the county of Tarrant, state of Texas, was injured at or near Ft. Worth, Texas, on or about the 4th day of December, 1907, on a line of railway owned or operated by the Chicago, Rock Island & Gulf Railway Company, while repairing cars near elevator No. Ft. Worth, Texas, cars were dropped against cars I was working on, cutting off right leg, under circumstances which I claim rendered such company liable in damages, although such liability is denied by such railway company, and the undersigned being desirous to compromise, adjust, and settle the entire matter:

"Now, therefore, in consideration of the sum of four thousand dollars ($4,000.00) to me this day paid by the Chicago, Rock Island & Gulf Railway Company, in behalf of itself and other companies whose lines are owned or operated by it, I do hereby compromise said claim and do release and forever discharge the said the Chicago, Rock Island & Gulf Railway Company, and all companies whose lines are leased or operated by it, their agents and employés, from any and all liability for all claims for all injuries, including those that may hereafter develop as well as those now apparent, and also do release and discharge them of all suits, actions, causes of actions and claims for injuries and damages, which I have or might have arising out of the injuries above referred to, either to my person or property, and do hereby acknowledge full satisfaction of all such liability and causes of action.

"I further represent and covenant that at the time of receiving said payment and signing and sealing this release I am of lawful age and legally competent to execute it, and that before signing and sealing it I have fully informed myself of its contents and executed it with full knowledge thereof.

"Given under my hand and seal this 2nd day of Jany., A. D. 1908.

                                          his
                                 "J. R.    X    Mitchell
                                          mark
                

"In presence of:

                    "Maggie P. Kirk
                    "W. C. Duringer.
                

"Paid by draft No. 1237 drawn by W. P. Williams."

Afterwards appellee brought suit against appellant, said railway company, and one Hall. He dismissed his suit as to Hall. The court peremptorily instructed a verdict in favor of the railway company, and submitted the case as between appellant and appellee to the jury. They found in appellee's favor for the sum of $6,000, and appellant prosecuted this appeal.

Capps, Cantey, Hauger & Short, for appellant. W. P. McLean, R. L. Carlock, N. H. Lassiter, and Robert Harrison, for appellee.

WILLSON, C. J. (after stating the facts as above).

Appellant requested the court to instruct the jury to return a verdict in its favor. The refusal of the request is complained of as error. In support of its complaint, appellant insists that, taking the view most favorable to appellee warranted by the testimony, he was a mere licensee while on its premises, and therefore that the only duty it owed to him was to refrain from intentionally injuring him while he was thereon, or, if it discovered him to be in a place of danger on account of cars moving from the elevator south on track 5, to use ordinary care to so manage such cars as to avoid injuring him. We think the testimony warranted a finding that appellee was not a mere licensee while engaged in inspecting and making light repairs of cars on track 5. It was shown that the railway company kept the track in repair for the operation of its cars and engines thereon, and not only was authorized, but was required, by the arrangement existing between it and appellant, to go on the track with its switch engines for the purpose of placing thereon cars of grain consigned to appellant, and for the purpose of removing such cars after they had been unloaded by appellant. It might very well be said, if there was nothing in the record showing that such a right had never been exercised by the railway company, that a right in it to inspect cars and make light repairs thereof while on the track should be implied from the duty it had assumed, for appellant's benefit as well as its own, it may be observed, of removing cars, when unloaded, from the track; for, obviously, both the railway company and appellant, when they entered into the arrangement which bound the former to remove unloaded cars from the track, must have contemplated that it might become absolutely necessary to inspect and repair cars before they could be removed. But it appears from the record that the railway company during a long period of time had exercised such a right, and that its inspectors, almost daily, without objection on the part of appellant, had inspected and made light repairs of cars on that track; and, further, that appellant's superintendent in charge of the work at its elevator knew of the practice, at least so far as the inspecting of the cars was concerned. From such circumstances a jury would be warranted in finding that appellee was not a bare licensee while on appellant's premises engaged in repairing the car, but that he was there lawfully, in the discharge of a duty he owed to the railway company, the performance of which would inure to the benefit of appellant, also, and which it had agreed might be performed there. If appellee was rightfully upon appellant's premises, it owed him the duty to exercise ordinary care to avoid injuring him while he was engaged in repairing the car. The testimony was sufficient, we think, to support a finding that it did not use such care. The jury might have inferred from the opportunity the testimony showed appellant to have had to know of it that it did know, not only that the railway company's employés inspected empty cars on the track, but that they also made light repairs thereof while on the track. And, if such an inference was not permissible, we nevertheless would not be prepared to say that the testimony was not sufficient to support a finding of negligence on its part; for, if appellant did not know and should not be chargeable with knowledge of the fact that such repairs were habitually made by the railway company's employés on the track, it did know, as testified to by its superintendent, that the railway company's employés inspected cars while on the track in question. It is a matter of common knowledge that in inspecting railway cars persons engaged in that duty go between and under the cars they are inspecting, and so place themselves in positions of danger from collisions between cars they are inspecting and other cars which may be moved on the track. The testimony was uncontradicted that appellant permitted the colliding cars to move down from the elevator and strike the car appellee was under with great force, without doing anything to warn employés of the railway company who might be engaged in inspecting same of danger they might be in from the collision it knew would occur. Whether a reasonably prudent person under the circumstances would...