Lancaster v. Crockett

• Citation: 271 S.W. 307
• Decision Date: 07 January 1925
• Docket Number: (No. 10906.)
• Parties: LANCASTER et al. v. CROCKETT.<SMALL><SUP>*</SUP></SMALL>
• Court: Court of Appeals of Texas

271 S.W. 307

LANCASTER et al. v. CROCKETT.^*

(No. 10906.)

Court of Civil Appeals of Texas. Fort Worth.

January 7, 1925.

Rehearing Denied February 14, 1925.

Writ of Error Dismissed for Want of Jurisdiction March 24, 1925.

Appeal from District Court, Eastland County; George L. Davenport, Judge.

Action by Ed Crockett against J. L. Lancaster, receiver, and others. Judgment for plaintiff, and defendants appeal. Reversed and remanded.

Shropshire & Bankhead, of Weatherford, for appellants.

Sayles & Sayles, of Eastland, for appellee.

BUCK, J.

Ed Crockett, plaintiff below, sued the receivers of the Texas & Pacific Railway Company for damages, alleging that, while he was engaged as a laborer in unloading cars on defendants' track at Eastland, Tex., on or about July 22, 1922, defendants' servants and agents negligently and carelessly pushed or backed a string of cars on to the switch where the car was being unloaded, causing plaintiff to be caught in the trucks of said car and causing plaintiff severe and permanent injury as the result thereof, and his right arm was severed from his body. He alleged that the defendants and their servants knew of his presence and the danger at the place where he was injured a short time before said injuries were inflicted and in time to have avoided the same, and that they negligently failed to warn him of such danger, although plaintiff had no knowledge of such danger.

The defendants answered by general and special exceptions, and a general demurrer, and specially pleaded that, if the plaintiff was injured in the manner alleged by him, he was a trespasser on said premises and guilty of negligence in going on defendants' railway track and about and under a car in the manner and under the circumstances he did at the time and place he did, and, if it had not been for such contributory negligence on plaintiff's part, the injuries of which he complained would not have occurred. They further pleaded that plaintiff went under the car in question and sat or lay down on the track and was lying or sitting under the car in question and leaning against the trucks or boxing or wheels or other part of the running gear of said car, and that said act and conduct constituted contributory negligence. The defendants further alleged that the place where plaintiff placed himself immediately prior to the accident was an obvious place of danger, a place where he had no right to be, a place where he had no business to be, and, after being warned of the danger of such position, he remained sitting or lying upon said railway track, or part thereof, and against said wheel or boxing or truck or other part of the running gear of said car until the accident of which he complains happened.

The cause was trial before a jury on special issues, and the jury found, first, that the defendants were negligent in the operation of their engine and train by failing to warn plaintiff of the approach of said engine, cars, or train, which resulted in the injury complained of by plaintiff; second, that such negligence on the part of defendants and their agents was the direct and proximate cause of the injuries complained of by plaintiff; third, that $10,000 would reasonably compensate plaintiff for the injuries sustained by him; fourth, that the defendants and their agents and employees did not ring the bell and sound the whistle of their engine in operating the same on the main track and switches just prior to the accident complained of by plaintiff; fifth, that plaintiff was not guilty of negligence in placing himself in the position he was in at the time he sustained the injuries complained of, and that the negligence of plaintiff in placing himself in such position did not contribute to the injuries sustained by him. The court entered judgment for plaintiff in the sum of $10,000, and the defendants have appealed.

The main question to be decided in this appeal is as to whether as a matter of law plaintiff was guilty of contributory negligence. He testified that he was 23 years old, and at the time of the injury was working for Jew Roper, unloading a car of four-inch pipe or casing; that the car was spotted just north of the ice plant and west of the freight depot on a side track; that those engaged in unloading the car drove their wagons alongside of the car and used two four-inch pipes for skids from the top of the car down to the wagons, and then lifted the casings out of the car and rolled them down these skids; that he was injured while waiting for the return of the other man, or men, at noon time, and had sat down under the car, leaning against the wheel; that it was very hot, being in July; that while he was sitting there a passenger train passed, and he moved from the north side of the car to the south side until the passenger train had passed; that he later went back to the north side; that while he was sitting in this position Mr. De Lane and Mr. Swearingen and Mr. Fuller, employees of the defendant railway company, passed within a few feet of him, and Mr. Fuller said, "It's a mightly warm day, isn't it," and he replied, "Yes," or something like that; that when the car was hit and moved it appeared that the engine or train that moved it came from the west, that he heard no noise, such as the blowing of a whistle or the ringing of a bell to warn him of any approaching engine or train; that no one called to him; that when the car was hit he tried to jump from under it, but it caught him and jerked him back, something caught him in the back, and the wheel caught his arm and dragged him down the track, and his arm was finally caught and cut off; that there was no railroad man or switchman around this car when he got hurt.

H. E. De Lane testified that he was local agent for the Texas & Pacific Railway Company at Eastland, and was at the passenger station on July 22, 1922, at the time of this accident; that shortly before the accident he and Mr. Swearingen, on their way from dinner, passed along near to where the defendant was subsequently injured; that the passenger train passed him and Mr. Swearingen at the Magnolia crossing at about 12:40 or 12.45; that he did not see the plaintiff on that occasion; that he knew where the car of pipe was located which plaintiff was assisting to unload; that it was on No. 3 track, the team track; that the closest the passenger train runs to this track is nine feet; that after the passenger train left the switch engine started out on the passenger track west to do some switching, and that it passed within nine feet of the car under which plaintiff was sitting; that when the switch engine went to the west end of the yards it had only a water car attached to it; that he supposed it was about eighteen car lengths west of the freight depot where this accident occurred; that he did not know how many cuts there were in these cars, but he knew there was one cut at the crossing, because they passed through that; that it was Mr. Swearingen's duty to clear the yard in the morning, and he made out a report of the cars on hand, and made up a switch list for the engineer to work by; that the company did not have any superintendent at that time, and Swearingen gave the engineer the switch list, and the switching crew went out and did the switching any time they desired; that the switching was done by the local freight engine and not by a yard switch engine; that Fuller was a warehouse trucker at that time, and worked under the supervision of the warehouse foreman, trucking freight or whatever the warehouse foreman told him to do.

C. D. Swearingen testified that at the time of the trial he was agent for the Eastland, Wichita Falls & Gulf Railway Company, but that on the date of the accident he was employed as demurrage and yard clerk of the Texas & Pacific Railway Company; that as a part of his duties he had complete charge of the freight yards between the yard limit bounds; that on the date of the accident and about 1 o'clock p. m. he walked through the west yards, coming east from what is known as the Magnolia crossing; that H. E. De Lane was with him at that time; that it was a warm day, and he saw a man sitting against the trucks under a box car smoking a cigar; that he walked within eight feet and to the left of this man; that he knew that the position occupied by this man was dangerous, but that he did not warn him of such danger; that the reason he did not warn him was because at that time he was not policing the yards, and that apparently the man was not a trespasser at that time, according to his idea of the affair; that he did not say anything to him at that time nor did Mr. Swearingen.

W. P. Fuller testified in part that he was a demurrage clerk for the Texas & Pacific Railway Company, and...