Kirby Lumber Co. v. Gresham

• Decision Date: 01 November 1912
• Citation: 151 S.W. 847
• Parties: KIRBY LUMBER CO. v. GRESHAM.
• Court: Texas Court of Appeals

151 S.W. 847

KIRBY LUMBER CO. v. GRESHAM.

Court of Civil Appeals of Texas. Galveston.

November 1, 1912.

Rehearing Denied December 5, 1912.

Appeal from District Court, Jefferson County; L. B. Hightower, Jr., Judge.

Action by Phil Gresham against the Kirby Lumber Company. Judgment for plaintiff, and defendant appeals. Reversed and rendered.

Oliver J. Todd, of Beaumont, and Andrews, Ball & Streetman, of Houston, for appellant. Blain & Howth and M. G. Adams, all of Beaumont, for appellee.

PLEASANTS, C. J.

This suit was brought by appellee against appellant to recover damages for personal injuries alleged to have been caused by the negligence of appellant. Plaintiff's petition alleges, in substance, that on or about the 25th of March, 1910, plaintiff was in the employment of defendant as a woodcutter or sawyer; that he was employed to cut or saw logs in the woods several miles from the town of Buna where the defendant operates a lumber mill; that it was at the date mentioned, and had long been, the custom of defendant's employés who worked in the woods to ride to and from their work on defendant's trains and cars; that such custom was known to and acquiesced in by the defendant and was for the mutual benefit and profit of defendant and its said employés; that in pursuance of said custom, and with the consent and under the direction of defendant and its authorized agents, plaintiff, on the date before mentioned, after having finished his day's work in the woods, got upon a flat car or trailer of a train composed of an engine, flatcar or trailer, and log cars loaded with logs, for the purpose of returning to his home at Buna, and while riding upon said train it was negligently derailed and wrecked and plaintiff was thereby injured.

The acts of negligence charged in the petition are as follows: (a) A failure to provide a reasonably safe track, in that (1) the rails thereof were not spiked and attached and fastened in any manner to the ties, or were not spiked and fastened with reasonable security for a distance of several feet or about five ties, and (2) the track and roadbed were curved and rested on a wet, boggy, and muddy foundation, which caused and permitted the track to sink and to be low and depressed, especially on one side; (b) the running and use of said engine, which was too heavy and dangerous under all the circumstances for said defective and curved part of the track; (c) the running of said engine without air or other brakes with which to control the speed thereof down a steep hill immediately before passing said defective part of the track, by reason of which incline and hill, the said engine and cars attained a speed high and dangerous, under all the circumstances and conditions.

The defendant's answer consisted of: (a) A general demurrer; (b) a general denial; (c) pleas of contributory negligence and assumed risk; (d) a special plea, in substance, that the log train was not provided or fitted up for plaintiff or other employés to ride upon, but that the defendant had provided regular trains for the purpose, and that plaintiff was not expected required, or invited to ride upon it, nor was it necessary for him so to do, and that it was against the rules, order, and wishes of the defendant for him so to do, and that he was riding upon it solely for his own convenience and pleasure, and that the defendant owed him no duty with respect to the matters complained of by him; (e) a special plea, in substance, that the defendant had made and promulgated rules prohibiting riding on its log trains, and that the plaintiff was riding on the log train in violation of said rules; and (f) a special plea, in substance, that the plaintiff voluntarily and without necessity selected the log train as a means of returning from his work, which train, while being run over the temporary switch track upon which the accident occurred, was a notoriously dangerous means of transportation, for the sole purpose of convenience to himself in getting to his destination earlier, in preference to waiting until later in the afternoon and riding in on the regular train provided by the defendant to carry employés from their work, which regular train was run only over the permanent main line track and was a safe means of transportation, and by such voluntary choice on his part was precluded from recovering.

The trial in the court below with a jury resulted in a verdict and judgment in favor of plaintiff for the sum of $9,500.

The evidence shows that plaintiff was injured at the time and place alleged in his petition as a result of the derailment of a log train owned and operated by appellant and upon which he was riding in from his work in the woods to his home in the town of Buna. At the time of his injury he was employed by appellant to saw logs in the forest. He furnished his own tools and was paid according to the number of feet of logs sawed by him. He was not required to work any specific time. He and the other employés who composed the sawing crew were only expected to saw enough logs to keep the loading crew engaged, and they quit work at any hour in the day that they found they had sawed the logs that were necessary to keep the loaders busy.

The appellant company is organized and chartered for the purpose of manufacturing lumber and is not a common carrier or railroad company. It operates a lumber mill at Buna and owns and maintains a tram railroad which it operates in connection with said mill for the purpose of hauling logs from the woods or forest to the mill. The main line of this road extends from Buna to a point in the woods called the corral, a distance of about four miles. Near the corral a switch track branches off to the right of the main track and extends into the woods for a distance of a mile and one half. This switch track is known as the "loading switch." Another switch track, known as the "skidder switch," branches off to the left of the main track from a point near the corral. These switch tracks are intended for temporary use only and are removed from time to time as the timber is cut from along their line. The loading switch, upon which the injury to plaintiff occurred, had been in use a month or two. This track was poorly constructed, in that the rails were not securely fastened to the ties, and the foundation or bed of the track...