Kansas City, M. & O. Ry. Co. of Texas v. Estes

• Decision Date: 02 May 1918
• Docket Number: (No. 852.)
• Citation: 203 S.W. 1155
• Parties: KANSAS CITY, M. & O. RY. CO. OF TEXAS v. ESTES.
• Court: Texas Court of Appeals

203 S.W. 1155

KANSAS CITY, M. & O. RY. CO. OF TEXAS v. ESTES.

(No. 852.)

Court of Civil Appeals of Texas. El Paso.

May 2, 1918.

On Rehearing, June 6, 1918.

Error from District Court, Tom Green County; C. E. Dubois, Judge.

Action by P. L. Estes against the Kansas City, Mexico & Orient Railway Company of Texas. Judgment for plaintiff, and defendant brings error. Affirmed.

H. S. Garrett, of San Angelo, Ellis Douthit, of Sweetwater, and Alexander, Baldwin & Ridgway, of Ft. Worth, for plaintiff in error. Leonard M. Levy, of Ft. Worth, Blanks, Collins & Jackson, of San Angelo, McLean, Scott & McLean, of Ft. Worth, and Lea, McGrady & Thomason, of El Paso, for defendant in error.

HIGGINS, J.

Estes, defendant in error, was in the employ of the Kansas City, Mexico & Orient Railway Company, plaintiff in error, in the capacity of switchman in the yards at San Angelo. He was under the direction and control of the foreman and yardmaster, Chambers. He was a member of a switching crew, which at the time of the accident complained of was composed of himself, Chambers, an engineer, and fireman, all working under the direction and control of Chambers. On October 7, 1914, this crew had occasion to handle a train which had arrived from the West. In this train were 18 cars of live stock next to the engine, and the remainder of the train consisted of 14 box cars containing perishable freight. It was desired to immediately forward the 14 box cars eastward. It was alleged by Estes that Chambers explained to the crew that the switching movement would be made in this wise: That the rear end of the train consisting of the 14 box cars would be shoved west down the main line beyond a Y-switch, and the engine would then pull the 18 cars of live stock back and past switch and then shove them in on the switch. It was further alleged that the engine coupled onto the train, and Chambers caused the train to be handled in a manner different from what it had been explained the movement would be made, and contrary to the instructions and directions previously given Estes; that the engine coupled onto the train and began to shove the same west; that during the movement, Estes, in the discharge of his duties, was walking on top of the train; that when the train had been shoved a short distance, and just as Estes was stepping from one car to another, Chambers, without warning, negligently released the coupling between the two cars and signaled the fireman and engineer to so control the movement of the engine that the cars would part; that at the time the cars were uncoupled, Estes was on top of the train, Chambers was on the side of one of the cars, and the engineer and fireman were in the engine cab, and that Estes was in such position that he could not be seen by the other members of the crew; that the separation of the train and kicking of the cars in the manner indicated was contrary to the instructions and directions previously given; and that Chambers knew, or in the exercise of ordinary care would have known, that Estes was relying on the directions he had previously received, and that he was expecting the cars to be shoved down the track, and was not expecting them to be kicked as was done.

The case was tried before a jury, and submitted upon special issues. The issues and answers are as follows:

Special Issue No. 1: At the time he released the coupling which caused the string of cars to part, did the foreman, Chambers, know that plaintiff was on top of said string of cars? Answer Yes or No. Answer: Yes.

Special Issue No. 2: At the time he released the coupling which caused the string of cars to part, could the foreman, Chambers, by the exercise of ordinary care, have known the whereabouts and the position in which plaintiff then was? Answer Yes or No. Answer: No.

Special Issue No. 3: At the time the foreman, Chambers, released the coupling which caused the string of cars to part, did he, by word of mouth or other signal of warning, apprise plaintiff of his intention to then cut the cars? Answer Yes or No. Answer: No.

Special Issue No. 4: If you have answered special issue No. 3 No, then state if such failure of the foreman to so warn plaintiff was negligence which proximately caused or contributed to cause the injuries of plaintiff, if any. Answer Yes or No. Answer: Yes.

Special Issue No. 5: Had the foreman advised or instructed plaintiff, or explained, within the presence and hearing of plaintiff, prior to the switching operation in controversy, how such switching would be done and performed? Answer Yes or No. Answer: Yes.

Special Issue No. 6: If you answer special issue No. 5 Yes, then answer: Did the foreman handle the cars in the manner in which he had advised plaintiff the same would be handled? Answer Yes or No. Answer: No.

Special Issue No. 7: If you have answered special issue No. 6 No, then did said foreman advise plaintiff that said switch operation would not be done in the manner in which he had previously advised plaintiff it would be done? Answer Yes or No. Answer: No.

Special Issue No. 8: If you have answered special issue No. 7 No, then was such failure of said foreman to so advise plaintiff negligence which proximately caused or contributed to cause plaintiff's injuries, if any? Answer Yes or No. Answer: Yes.

Special Issue No. 9: Did the plaintiff sustain the injuries, or any of the injuries, alleged in his petition upon the occasion in question? Answer Yes or No. Answer: Yes.

Special Issue No. 10: If you have answered special issue No. 9 Yes, then what amount of damage, if any, do you find plaintiff has sustained by reason of such injuries? Answer this in dollars and cents. Answer: $16,750.

Special Issue No. 11: In being in the position and place in which you may believe and find from the evidence plaintiff was at the time the string of cars parted, was the plaintiff himself guilty of negligence which proximately contributed to cause his injuries, if any? Answer Yes or No. If you answer this issue No, you need not consider special issue No. 12. Answer: Yes.

Special Issue No. 12: If you have answered Yes to either special issue No. 4 or special issue No. 8, and have also answered Yes to special issue No. 11, you will then answer to what extent do you diminish the total damages assessed by you in answer to special issue No. 10? Answer this in dollars and cents. Answer: $4,187.50.

Special Issue No. 13: Was the injury, if any, sustained by the plaintiff, P. L. Estes, at the time of his fall, the result of risk of his employment assumed by him? Answer Yes or No. Answer: No.

Special Issue No. 6 (requested by defendant): (1) Did the plaintiff fail to exercise ordinary care to watch out for signals indicating the particular method of doing the work at the immediate or exact time of the actual movement which resulted in injury to the plaintiff? Answer: No. (2) If so, were his injuries the proximate result of such failure? Answer: No.

Special Issue No. 17 (requested by defendant): At the time the plaintiff started to step from one car to the other (if you believe he was injured in that way), was the fact that the cars were being or had been uncoupled apparent to ordinary observation by one in the position Estes, the plaintiff, was at the time? Answer: No.

It is admitted that this case is controlled by the federal Employers' Liability Act (Act Cong. April 22, 1908, c. 149, 35 Stat. 65 [U. S. Comp. St. 1916, §§ 8657-8665]). Plaintiff in error has filed a brief of 319 pages, containing 47 assignments, supported by numerous propositions. The assignments will not be considered in detail, for to do so would render this opinion lengthy beyond all reason.

Assignments 1 to 6, inclusive, complain of the refusal to give a peremptory instruction for defendant. It is asserted in support thereof that the undisputed evidence discloses that the negligence of Chambers relied upon as a basis of recovery was not the proximate cause of the injury; that it shows the injury was the result of a risk assumed by Estes; further, that the injury was the result of an unavoidable accident. In addition to the facts found by the jury, there is evidence to the following effect:

The terms "shove" and "kick" are well understood among railroad men in performing their work, and have distinct meanings as applied to the work at hand, which resulted in Estes' injuries. The fireman of the switching crew, Puett, testified:

"When you shove a train of cars, you shove them all up slowly, and when you want to stop, stop them and cut them off. When you kick a train of cars, you shove them fast, and when you get ready to cut them off, pull the pin and let part of them stop and the rest go on."

He further testified that he did not know from the time Chambers told him they would shove the cars in on the main line that he had changed his mind until he got the "kick" signal.

Before proceeding to handle the train in question, the foreman, Chambers, gave his instructions to the crew as to the manner in which the train would be handled, and the proposed switching movement made. He told them they would "shove" the train back on the main line past the Y-switch, leave the 14 box cars on the west end of the train on the main line, then pull the 18 cattle cars back east of the switch, then place the cattle cars on the Y-switch. Estes asked Chambers if he should ride the string of 14 cars, and Chambers said, "Not necessarily." The importance of this inquiry and answer lies in the fact that if it had been the plan to "kick" the 14 cars on the main line past the switch, then it would have been absolutely necessary for Estes to have ridden them, and set the brakes when the cut of cars had reached the proper location, for otherwise these 14 cars would have been running wild without control. But if these cars were to be "shoved" back on the main line past the switch, then it was not absolutely necessary for Estes to ride that particular part of the train. This is...