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

• Decision Date: 28 November 1916
• Docket Number: (No. 575.)
• Citation: 190 S.W. 1143
• Parties: KANSAS CITY, M. & O. RY. CO. OF TEXAS v. FINKE.
• Court: Texas Court of Appeals

Page 1143

190 S.W. 1143

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

(No. 575.)

Court of Civil Appeals of Texas. El Paso.

November 28, 1916.

Rehearing Denied January 5, 1917.

Appeal from District Court, Knox County; Jo A. P. Dickson, Judge.

Action by C. A. Finke against the Kansas City, Mexico & Orient Railway Company of Texas. Judgment for the plaintiff, and defendant appeals. Affirmed.

H. S. Garrett, of San Angelo, and D. J. Brookreson, of Benjamin, for appellant. W. M. Moore, of Benjamin, and Ocie Speer, of Ft. Worth, for appellee.

HARPER, C. J.

This is an appeal from a judgment in favor of plaintiff (below) for $3,000, with legal interest from date thereof.

For cause of action plaintiff pleaded that on or about February 17, 1915, while acting as roadmaster for defendant, he was making his usual trip over the road in a motorcar furnished by defendant, prosecuting his duties of inspection, and while in the exercise of proper care, without fault upon his part, and without notice, he ran into an open switch, his car was derailed, and by reason thereof he was injured; that the switch being open and disconnected was negligence upon the part of defendant and the proximate cause of the accident and injury.

Defendant answered that it was engaged in interstate commerce at the time of the accident, and that plaintiff was an employé of the defendant in such commerce within the meaning of the act of Congress of April, 1908; that it was plaintiff's duty to see that the track was in proper condition, including the side tracks and switches in Hamlin, and that switch targets, including the one in question, were in such condition that they could be readily seen several hundred yards away by persons approaching; also that switches, including the one in question, were closed when it was customary or necessary that same be closed; that at the time of the accident the switch target in question was in first-class condition so that it could have been seen by plaintiff with ordinary care several hundred yards away and in time to have avoided the accident; if it was not in such condition, this was plaintiff's fault; that the switch in question opened upon a coal and water track upon which engines went to obtain coal and water for use in hauling trains engaged in interstate commerce; that at and prior to the accident it was customary where engines went on the switch track for coal and water to leave the switch open until their return, with which custom plaintiff was, or should have been in connection with his duties, fully familiar; that at the particular time of the accident a road engine hauling freight between California and Kansas had gone on the switch track to obtain coal and water for use in such carriage; that plaintiff knew or should have known of such facts, even without being apprised thereof by the switch target itself; that, notwithstanding all these facts, plaintiff undertook to run a motorcar at a dangerously rapid rate of speed north from Hamlin past the switch track, although he well knew, or with ordinary care for his own safety should have known, and in accordance with his duty as an employé should have known, that the switch was open at the time; that in addition plaintiff could have discovered the open switch with ordinary care, and it was his duty to do so under the rules of railroading and in accordance with his duties, in ample time to have stopped the motorcar, because the switch target clearly disclosed, in the usual manner, that the switch was open; yet plaintiff ran into the switch in gross violation both of the duty he owed to himself and to the property in his charge and of the universally accepted rules of defendant and principles of railroading; that therefore the accident and injuries resulted solely from the risk assumed by plaintiff in connection with his employment, and especially in undertaking to run the motorcar over the track at such speed under the conditions then existing.

The cause was submitted by special issues. The questions submitted and the answers thereto are as follows:

"No. 1. Was the defendant, acting by and through its servants or employés, guilty of negligence in leaving the switch open, into which the plaintiff ran? Answer: Yes.

"No. 2. If you have answered Issue No. 1 in the affirmative, then answer the following issue: Was such negligence, if any you have found, upon the part of the defendant, the proximate cause of the accident to the plaintiff? Answer: Yes.

"No. 3. Was the plaintiff injured as a result of the accident in question? Answer: Yes.

"No. 4. Was the plaintiff guilty of negligence in running into the switch, under the circumstances surrounding the plaintiff at the time of the accident? Answer: Yes.

"No. 5. How much damage has the plaintiff sustained, if any, by reason of the accident in question and the injuries received, if any, by him, by reason of said accident, if any? Answer: $8,000.

"No. 6. If you have answered the fourth issue in the affirmative, then answer the following issue: Was plaintiff's negligence the sole proximate cause of the accident and the injuries, if any, to the plaintiff? Answer: No.

"No. 7. If you have found in answer to issues Nos. 4 and 6 that plaintiff was guilty of negligence in running into the open switch, and that such negligence, if any, contributed to cause the said accident and injuries, if any, occasioned plaintiff by reason thereof, then answer the following: How much in dollars and cents did plaintiff's contributory negligence, if any, contribute to the damage, if any, sustained by the plaintiff? Answer: $5,000.

"No. 6a. If in answer to Issue No. 4 you have found that the plaintiff was guilty of negligence in running into the said open switch, then state whether such negligence contributed to the accident and injuries, if any? Answer: Yes."

Special issues submitted at request of defendant:

"1. Was it the custom where the engines went in upon the side track to get coal and water to leave the switch open until the engine came out? Answer: Yes.

"2. If you have answered the above question, No. 1, in the affirmative, then say: Did plaintiff, C. A. Finke, know of such custom, or should he have known of such custom by the exercise of ordinary care? Answer: Yes."

Upon which judgment was entered for plaintiff.

Appellant's first, second, fourth, fifth, sixth, seventh, and eighth assignments urge that under the undisputed facts and the findings of the jury the court erred in refusing to instruct a verdict for defendant, because: (a) The undisputed proof is that defendant railway company and plaintiff, as its employé were engaged in interstate commerce within the meaning of the act of Congress as pleaded; (b) that there is no pleading or evidence to charge or show that the injuries resulted from or were contributed to by the violation by the defendant of any statute enacted concerning safety appliances for the protection of employés; (c) and that the undisputed proof shows that the plaintiff assumed the risk; and (d) that it was because of his own negligence that the accident and consequent injuries occurred; (e) that there is no evidence of negligence upon the part of defendant.

The proof is conclusive that the defendant and plaintiff, as its employé, were engaged in interstate commerce, and there is no evidence to the contrary; so this question was not required to be submitted to the jury. Therefore, the jury having found that plaintiff was guilty of contributory negligence, his recovery is reduced from $8,000 to $3,000. The issue of contributory negligence is disposed of. The question of violation of statute requiring safety appliances is not in this case by either pleading or proof.

Since the question of assumed risk as a defense was not submitted to the jury and not requested by appellant, the issue will by this court be resolved in favor of or in support of the judgment, if there is any evidence to support such a finding by the trial court.

But appellant urges that the questions submitted upon its request submitted the issue, and that the answers thereto constitute a finding for the defendant. The effect of the questions and answers, at most, is...