Kansas City, M. & O. Ry. Co. v. Wood

• Decision Date: 09 April 1924
• Docket Number: (No. 6727.)
• Parties: KANSAS CITY, M. & O. RY. CO. OF TEXAS. v. WOOD.
• Court: Texas Court of Appeals

262 S.W. 520

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

(No. 6727.)

Court of Civil Appeals of Texas. Austin.

April 9, 1924.

Rehearing Denied May 28, 1924.

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

Action by Frank M. Wood against the Kansas City, Mexico & Orient Railway Company of Texas. Judgment for plaintiff, and defendant appeals. Reversed and rendered.

Collins & Jackson, of San Angelo, for appellant.

B. Q. Evans, of Greenville, and J. A. Thomas, of San Angelo, for appellee.

BAUGH, J.

Frank M. Wood sued appellant for damages for personal injuries sustained by him at Fort Stockton, Tex., on June 18, 1920, while assisting in coupling a water car onto a fruit car. Wood had been employed by appellant railway company, which for brevity will hereinafter be called the railway company, as car inspector at San Angelo, Tex., and on June 17, 1920, was sent by said company to Fort Stockton to relieve one Akin, car inspector at that place. On the morning of June 18th, at about 6:20 o'clock, he was inspecting a freight train in transit in interstate commerce. While doing so, and just before he had completed his inspection, an engine pushed a water car, on the back end of which brakeman Garrett was riding, towards the fruit car in question, to couple onto the train. The appellee went between the cars to assist in the coupling and in the effort to align the drawhead of the cars his foot was caught and so injured as to require amputation just below the ankle.

The plaintiff alleged as the chief grounds of negligence of the railway company the failure of the outgoing inspector, Akin, to note and have repaired all defects in cars in the yards, which included the water car, before he O. K.'d them to plaintiff; negligence of the train crew handling the water car in failing to discover, repair, and advise him of its defects; failure of the railway company to equip the cars with proper devices to line up drawheads without the necessity of going between the ends of the cars to do so; and its failure to furnish cars with couplers that would couple automatically by impact as required by the federal and state laws. The case was submitted to a jury on special issues, and their findings thereon are succinctly stated in appellant's brief as follows:

"(a) That the coupler on the moving car which caused the plaintiff's injury was out of line to the extent that it would not couple automatically by impact without a person going between the cars; (b) that such condition was occasioned by a defect and insufficiency in the appliances used to keep the coupler in line; (c) that it was the outgoing inspector's duty to examine and repair the coupling appliance on the moving car; (d) that such inspector informed the plaintiff that all cars in the yard had been inspected and that there would be none for his inspection until a train came in; (e) that it was not the duty of the plaintiff to inspect the coupling appliances under circumstances shown; (f) that the outgoing inspector was negligent in failing to inspect and repair the defect on the moving car; (g) that such negligence on his part was a proximate cause of plaintiff's injuries; (h) that it was the duty of the brakeman to ascertain whether or not the moving car and its coupling appliances were in such condition that it would couple automatically; (i) that he failed to exercise such duty; (j) which was negligence proximately causing the plaintiff's injury; and (k) assessed the damages at $12,500.

"The court also submitted to the jury special issue No. 1A, in response to which it found that the sole and only purpose of the plaintiff in making the coupling in question was to determine whether or not the coupling apparatus would work, and special issues 3D, 7D, and 10D, requiring findings as to the plaintiff's own negligence, his contributory negligence, and proximate cause, all of which were answered favorably to the plaintiff."

Opinion.

Appellant brings the case before us properly on 31 assignments of error, on which it bases 29 propositions of law. These assignments, however, raise only two questions which we deem it necessary to discuss.

Appellant's first proposition is that:

"The court erred in overruling the defendant's motion for an instructed verdict seasonably filed, because the plaintiff wholly failed to sustain the burden imposed by the law under his pleadings of showing by competent evidence that his injury was caused either by a defect in the coupling apparatus on the moving car or by the defendant's failure to meet the requirements of the federal Safety Appliance Act relative thereto."

The portion of what is commonly known as the federal Safety Appliance Act pertinent to the question here raised reads as follows:

"That on and after the first day of January, eighteen hundred and ninety-eight, it shall be unlawful for any such common carrier to haul or permit to be hauled or used on its line any car used in moving interstate traffic not equipped with couplers coupling automatically by impact, and which can be uncoupled without the necessity of men going between the ends of the cars." U. S. Comp. St. § 8606.

The application of this law in cases of injuries received by employés engaged in the operation of trains generally has been passed upon by both state and federal courts so often that there can be little or no doubt left as to its scope or meaning. Naturally the vast majority of injuries, calling for the application of this law, are to brakemen, members of train crews, or switchmen in yards. So far as we have been able to find, its application to inspectors has never been passed upon. The express language of the statute declares that its purpose was to obviate the necessity of employés going between the ends of cars to couple or uncouple them. It is not sufficient to place automatic couplers on cars, but they must be kept in repair so as to operate successfully. Ry. Co. v. Wagner (Tex. Civ. App.) 166 S. W. 24; Ry. Co. v. Brown, 229 U. S. 317, 33 Sup. Ct. 840, 57 L. Ed. 1204. Nor is the act complied with if the drawbars are allowed to get out of line to such an extent that the cars will not couple without the necessity of an employé going between the cars to align them. T. & P. Ry. Co. v. Sprole (Tex. Civ. App.) 202 S. W. 985; Ry. Co. v. Powell (Tex. Civ. App.) 252 S. W. 269; Ry. Co. v. Wagner, 241 U. S. 476, 36 Sup. Ct. 626, 60 L. Ed. 1110. Nor is it sufficient to exercise reasonable care in maintaining automatic couplers in an operative condition, but in the event of failure to comply with the federal Safety Appliance Act in keeping them in safe condition the liability of the railway company for injuries resulting therefrom is absolute. C., B. & Q. Ry. Co. v. U. S., 220 U. S. 559, 31 Sup. Ct. 612, 55 L. Ed. 582; Ry. Co. v. Taylor, 210 U. S. 281, 28 Sup. Ct. 616, 52 L. Ed. 1061. It is also settled that the preparation or alignment of a drawhead preparatory to the impact of the cars constitutes a part of the act of coupling within the meaning of the statute. Ry. Co. v. Sprole (Tex. Civ. App.) 202 S. W. 985.

However, it cannot be said that the act requires the railway company to keep its drawbars in perfect alignment at all times. The drawbars must of necessity have some freedom of action laterally to enable trains to negotiate curves in the track. The law only imposes upon the railway company the duty to keep them in such alignment and so equipped that they will couple automatically without the necessity of any one going between the ends of the cars to effect a coupling, and if it fails to do so, and personal injuries result to those whose duty it is to make the coupling, then the railway company's liability is absolute.

But appellant's contention in the instant case is that the plaintiff failed to discharge the burden cast upon him to show that the railway company had violated the Safety Appliance Act. On this point the evidence was substantially as follows: Plaintiff testified that Brakeman Garrett, as the moving water car approached the standing fruit car, pointed to the drawhead of the standing car; that he (plaintiff) opened the knuckle of the fruit car and tried to push the drawbar over with his hands, but found it tight, and could not do so; that it was out of line towards him, to quote his testimony, "I guess an inch or inch and a half, maybe two inches"; that "the normal play is about an inch and a half on each side." Though he testified that the drawbar on the standing car was out of line enough for him to notice it, on cross-examination he also further testified:

"So far as I know there was no defect in the drawbar; I possibly would not have done anything to the car under my duties as inspector from what I discovered. I expect I would have passed it as being in good order, and let it gone on."

Garrett testified that he did not point to the drawbar on the standing car, and that he saw nothing wrong with it. R. L. Carr, foreman of the mechanical department of appellant at Ft. Stockton, testified by deposition that he examined the drawbars and coupling apparatus of both cars carefully immediately after the accident and found no defects whatever in them, but that they were in perfect condition. It is not controverted that both cars were equipped with automatic couplers. Under the undisputed evidence, therefore, there appears no defect in the coupling apparatus of the standing fruit car at the time, nor was it out of line more than the normal lateral play allowed for curves.

The question is therefore confined to the defect, if any, on the moving or water car which was bumped into it. Plaintiff alleged and testified that the drawbar of the water car was about four inches out of line, away from him, and that the cars would not have coupled had he not placed his foot on the drawbar of the standing car and pushed it over; that the misalignment of the drawbar of the approaching car caused his injury; that if such drawbar had...