Kansas City Southern Ry. Co. v. Chandler

• Decision Date: 13 December 1945
• Docket Number: No. 4313.,4313.
• Citation: 192 S.W.2d 304
• Parties: KANSAS CITY SOUTHERN RY. CO. v. CHANDLER.
• Court: Texas Court of Appeals

192 S.W.2d 304

KANSAS CITY SOUTHERN RY. CO. v. CHANDLER.

No. 4313.

Court of Civil Appeals of Texas. Beaumont.

December 13, 1945.

Rehearing Denied January 30, 1946.

COPYRIGHT MATERIAL OMITTED

Appeal from District Court, Jefferson County; W. S. Nichols, Judge.

Suit under Federal Employers' Liability Act §§ 1-10, as amended, 45 U.S.C.A. §§ 51-60, by F. H. Chandler against Kansas City Southern Railway Company to recover for injuries sustained by plaintiff while an employee of defendant. From a judgment for plaintiff, the defendant appeals.

Affirmed.

Orgain, Bell & Tucker, of Beaumont, for appellant.

Adams, Hart & Daughtry, of Beaumont, for appellee.

COE, Chief Justice.

Appellee, F. H. Chandler a former employee—a switchman — of the Kansas City Southern Railway Company, brought this suit for personal injuries to himself in the 58th District Court of Jefferson County, Texas, under the Federal Employers' Liability Act, U.S.C.A., Title 45, §§ 51-60. He alleged that while in its employ in such capacity he was required to constantly get off and on the trains upon which he was working, that his employer put upon the path where he was required to alight "ballast, consisting of gravel and hard rocks of various sizes, to-wit, from two to five inches in diameter," and that in the course of his work during the said period of time from the 15th day of May, 1943, to about the 10th day of July, 1943, to-wit, on or about the 15th day of June, 1943, appellee sustained injuries in the course of his said work by stepping on or against said rocks. Trial was had to a jury and upon its verdict judgment was rendered for appellee for $20,000. Proper motion for a new trial was duly filed by appellant and overruled by the trial court. Having given notice of appeal from the action of the court in overruling its motion for a new trial, appellant has properly perfected its appeal to this court.

The appellant answered by general denial, alleging that the appellee was guilty of negligence which was the sole proximate cause of his injury, if any, or in the alternative a contributing cause to such, that appellee assumed any risk attendant from the work.

By Point of Error No. 1, appellant complains of the action of the trial court in overruling and refusing to sustain its motion for an instructed verdict on the ground that the evidence wholly failed to show that the appellant was guilty of any negligence in the placing upon or near the track and leaving there the gravel complained of.

Upon the trial, appellee testified that for a number of years he had been engaged in railroad work as a switchman for different railroad companies; that he had formerly worked for the Kansas City Southern Railway Company, and had returned to its employ on December 31, 1942, at which time he was working out of Port Arthur, Texas; that around May 14th or 15th, 1943, he started work on what is known as "4 p. m. switch engine," operating out of Beaumont; that the work on this job required continuous switching of cars of the company in the vicinity of the water tank and between Chaison Switch and Irving Street, of which area he complains in this suit; that his work required him to get off and on the sides of the cars involving the switching movements in order to make "his cut" to permit cars to be switched, that it was necessary that he step down or jump down a distance of 24 to 30 inches from the step to the path about which he complains, that he worked upon this job for 87 nights, commencing about May 10 or 15, 1943; that his work required long hours on practically all of the nights and on numerous occasions he would work 16 hours straight, and that at least half of his work was performed in the 250 or 300 feet area between Irving Street and Chaison Switch; that in getting off and on the cars in this switching operation, pulling pins, he had to get off and on from this pathway which was covered with said rocks and in catching cars he had to run in this pathway in order to make the catches; that in March of 1943, there were no rocks in that pathway but that when he first went to work there in May it had rocks on it and that they were loose and they did not pack down, and described such rocks by stating, "From about like that up to about like that (indicating)." He further described them "as big as an ordinary soup bowl, about four or five inches through, there were lots of them like that," that it looked like it was refuse that they had sifted out of a gravel pit; that in the course of three or four days from the time he went to work that the biggest of those rocks were gone but plenty of them were left there as big (indicating) on down. When asked about how that size would compare to the size of an ordinary apple, he replied, "Well, that would about get it," and that such rocks remained there until sometime about the middle of August when they were cleaned up; that in stepping down from the cars upon said rocks he would step or jump from 24 to 30 inches, and in a majority of times the train would be moving and that he had difficulty in getting on and off on the rocks, and that about the middle of July that his feet began to bother him and that he could not tell whether it was soreness in the muscles or whether it was strain or from continued long hours; that he then went to a doctor for treatment of his feet but continued to do his work, wearing a shoe prescribed by his doctor, and that he continued to work until the latter part of August when it seemed like his feet started getting bad on him, swelling and giving him pain. He continued to work part time during the month of September and two days in October, as a relief switchman; that at the time he worked there in September the pathway had been cleaned up and dirt and sand and other things had been placed on it and leveled out and that the rocks were gone, and that during his last work during the first part of October his feet got so sore and swollen that he just could not go any more. Appellee also testified that before his experience in switching upon this particular job that he had never had any trouble with his feet. He further testified that when making these jumps or stepping from the cars that it did not hurt his feet so bad on account of having on heavy shoes, but that it just kept on agitating and agitating and coming up on him; that he complained to the roadmaster and yardmaster and asked them if there was some way they could do something with the rock, cover them over with something that would be suitable to work on and that Mr. Arnold told us that he would get to it as soon as he could, to give him an opportunity and he would fix it up (Mr. Arnold was the roadmaster). This was about June 1st. He also asked the section foreman, a Mr. Cooper, to remedy the condition and that he continued to work on those rocks in the belief that Mr. Arnold would carry out his promise to repair the condition, but that such repairs were not made until the latter part of August. He further testified that all the five inch rocks were removed from the pathway in two or three days after the time he went to work but that they did not do anything about the other rocks, and that they remained there until about the middle of August. The evidence further shows that of the several employees of the appellant who worked with and around the appellee, on and over the area complained of, many were still in the employ of the appellant, several of whom were located here in Beaumont. Of this number, the appellant called one witness, a Mr. Butwer, who testified that in 1942 to the latter part of 1943 he was working for the Kansas City Southern Railway Company in the Beaumont area and that when Chandler was working at Port Arthur (previous to the time he went to work in Beaumont) he complained about his feet; that witness worked upon this gravel and had no trouble; that he knew of no other person who had any foot trouble from working upon this gravel. As to the size of the gravel, witness testified that it was just a natural gravel that you would pick up for the purpose of filling in, that it would be from the size of an egg and smaller, and like that, that it was ordinary ballast found all up and down the line, even in front of the depot, that the condition that appellee complained of was no different than it was any where up and down the line. On cross examination, he testified that the largest gravel was about the size of an egg (indicating). Appellant called a witness by the name of Owen, who testified that Chandler had complained to him of his feet hurting before he started working upon this particular job. Appellant also called one Sweet, who testified that he had never heard of anyone injuring his feet in going upon this rock or gravel, that it was just ordinary ballast, that he had worked there and had no trouble in walking upon the gravel; that there were no big rocks, just ordinary ballast.

Appellant contends that appellee's evidence failed to show any actionable negligence on the part of appellant with reference to the matters complained of and cited many authorities to support their able argument in support of this contention, among them being Doty v. Ft. Worth & D. C. Ry. Co., 127 Tex. 521, 95 S.W.2d 104; Delaware L. & W. R. Co. v. Koske, 279 U.S. 7, 49 S.Ct. 202, 73 L.Ed. 578, Toledo St. L. & W. Ry. Co. v. Allen, 276 U.S. 165, 48 S.Ct. 215, 72 L.Ed. 513. These opinions by both the state Supreme Court and the Supreme Court of the United States in one way or the other support the contentions that the evidence failed to establish actionable negligence on the part of the appellant. However, each of these opinions was written before the amendment of the Federal Employers' Liability Act in 1939, which abolished the defenses of assumed risk to this character of action. In most of these cases the defense of assumed risk was urged and seems to have been applied by the courts under different names, sometimes as showing...