Kirby Lumber Co. v. Henry

• Decision Date: 26 May 1915
• Docket Number: (No. 5484.)
• Citation: 178 S.W. 23
• Parties: KIRBY LUMBER CO. v. HENRY.<SMALL><SUP>†</SUP></SMALL>
• Court: Texas Court of Appeals

178 S.W. 23

KIRBY LUMBER CO. v. HENRY.^†

(No. 5484.)

Court of Civil Appeals of Texas. San Antonio.

May 26, 1915.

Rehearing Denied June 28, 1915.

Appeal from District Court, Hardin County; J. Llewellyn, Judge.

Action by John Henry against the Kirby Lumber Company. From a judgment for plaintiff, defendant appeals. Reversed and rendered.

Andrews, Streetman, Burns & Logue, of Houston, for appellant. V. A. Collins, D. E. O'Fiel, and F. G. Vaughn, all of Beaumont, for appellee.

CARL, J.

Appellee, John Henry, sued appellant, Kirby Lumber Company, and recovered $5,000 on account of personal injuries sustained by him, as will hereinafter appear.

The substance of the allegations of the petition is well stated by appellant as follows:

"(a) That he was employed by the defendant in the capacity of a tramroad employé, and that it was his duty to clear off trams and keep stumps out of the way thereof for the purpose of the extension of such trams.

"(b) That all employés of the defendant were carried back and forth on the tram train of the defendant.

"(c) That by virtue of his contract under the rules and customs of the defendant company, he became entitled to transportation on defendant's tram train back and forth from his work.

"(d) That on account of long-established custom, he became entitled to transportation, not only out in the morning and back in the evening, but in the event of his ceasing work before the train which carried the employés in from work in the evening went in, he was entitled to be transported by the defendant's in-going trains, and in the event no other train was going in at such time, he was entitled to transportation on defendant's log train.

"(e) That on the day when he was injured, he completed at about the noon hour the work assigned to him for the day, and was told by his foreman to `go over and catch that train and go in,' and that he went over to where one of the defendant's engines was standing on the tramroad and those in charge of said engine told him that if he was going in with them, to come and help wood up, whereupon he went around and began to throw wood up into the tender; those in charge of said train promising him that they were going into the mill almost immediately.

"(f) That after finishing wooding up, said engine backed down towards the mill to a switch, the plaintiff sitting on the front of the tender and his position being well known to the agents and employés of the defendant company operating said train, and that when said engine got down to said switch the engineer operating same pulled same out on said switch to couple up a load of logs and carry in to the mill."

"The plaintiff further alleged that after the first car was coupled up, the brakeman stepped out from between the said train and said tender, and the engineer on said train, without giving plaintiff notice of his intention to move said train, backed up with great force and velocity and ran the loaded car which had just been coupled to the tender against another loaded car with great force and velocity, and striking said other car with great force and impact; that on the car coupled to said tender and next to the one where plaintiff was sitting was a log of greater length than the car, and that when the engineer backed said car into said second car with such great force, said projecting log at the end of the car opposite where plaintiff was sitting struck the logs on the second car with such force that it pushed said projecting log on the first car with great force and violence back against the end of the tender where plaintiff was sitting, and without notice or warning to the plaintiff caught his leg between the said tender and the end of the log; and that the position of such projecting log was known to defendant's agents and servants, or by the use of ordinary care could have been known to them, and the dangers of backing such train with such force."

Appellant interposed a general demurrer, as well as denying all the material allegations, and pleaded specially contributory negligence and assumed risk on part of appellee. It was also pleaded that Henry was neither required nor invited to take the position he did take on the tender which he was occupying when injured, but, on the contrary, he had been warned of the danger of so doing; that it was against the rules of the company to do so, of which Henry knew; that he had no duty to perform thereon, and was not expected, required, invited, or permitted to get upon the tender or ride thereon, and that no purpose of the defendant was being subserved by his being thereon at the time and place and under the circumstances of the accident in question; and that defendant owed him no duty in respect to the matters alleged in the petition.

At the conclusion of the evidence appellant asked the court to instruct the jury to return a verdict for the defendant, which was refused, and this is made the basis of the first assignment of error.

Appellee says that he had been working for the company about six months at Silsbee and two weeks at Evadale. He testified:

"My work was about four or five miles from the place where I boarded. * * * Every morning they would take all the men out in the car, and if you worked all day they would bring you back in the car, but if you knocked off before night, or they knocked you off, you would top the log cars. Once I knocked off before night, and I went in on the log cars, and there was no objection raised. * * * My work was cutting right of way. * * * There was not but two of us cutting right of way. * * * There was five or six men working there, but only two of us cutting right of way. * * * There wasn't but one man that worked directly with me, and his name was Ely White. * * * We got through Saturday. About 12 o'clock. * * * We got through about noon, and he [the foreman] told us to take the tools and take them to the lot and catch the log train and go in. I never did ride on that log train before that day. * * * When we got to the lot the log train was not there, we didn't see it, but the teamsters had quit work and I seen some of them running through the trees, and I told Ely, `We had better walk up, that train is going to leave us,' and he said, `It always blows,'" etc., "and we went on around the curve, and the engine was there wooding up, and Henry McGill was with me then, and I asked him which way the train was going, and he said he didn't know, and by that time the fireman looked around and seen me and said, `Boys, wood up and I will take you on in,' and the brakeman said, `Yes, everybody wood up,' and the engineer looked around and said, `If you want to go in, you will have to wood up.' After we got wooded up he said, `Let's go,' and we went up the main line about a half a mile. * * * The engineer saw me when I got on the train — on the tender of the engine. I had been riding on the same place where I got hurt all the time I had been working there when I was going to and coming from the woods. * * * They would bring us in from the woods on a light shay engine. * * * In going out I always rode on this same place, and they had the same crew. * * * When I took my seat on the tender the engineer and fireman were right there and saw me when I took my seat. * * * Then we started to the mill and went about a mile and one-half, and we had five empty cars behind and they uncoupled them and left the five empties on the main line, and Henry and Ely was on the empty cars. * * * After they cut in on the switch they went down to the loaded cars; don't know how far they were from the switch, I guess about a mile; it was a long ways down there; it was the first time I had been down there, and it seemed like a mile to me, might not have been quite so far, but they were just going a splitting and I had not got through eating when we got there. When we got to the loaded cars the brakeman came around behind and stood on the apron with me. * * * When we got to them he coupled the train up. I was about as close to the first car load of logs as the length of this table (about three feet), and I could see them all right, and the ends of the logs on that car were smooth and shapely and in good order. I could not see the other end of the car because the logs were stacked too high. * * * I could not see any danger from that load of logs, couldn't see any more danger than I see now.

"When the engineer made the first coupling, he just backed up to the next one to make the second coupling, but he did not ring the bell or blow the whistle. I could not see the brakeman at the time the train began to back up; I looked for him, but couldn't see him; he got away from me. I wanted some water, and I looked to see how far the loaded car was from us, and I aimed to get up, and just as I started to get up the engine went back, and I caught hold of a piece of iron, and before I could recover the log shoved in and mashed my leg and I jumped off. That log shoved back, I will say, four or five feet before it struck my leg; it just shoved back there, and caught my leg in between it and the tender of the engine. Before it slipped back my leg was four or five feet from the end of the log. The whole bunch of logs that were on the car were that far from me. There wasn't but one log that shoved back, and that was the one that caught my leg in between it and the tender and mashed it. * * * I have always been a strong, robust nigger, and able to do good work. * * * The car next to me struck the other car with such force that the...