Lancaster v. Jarrett

• Decision Date: 10 December 1924
• Docket Number: (No. 2978.)
• Parties: LANCASTER et al v. JARRETT.<SMALL><SUP>*</SUP></SMALL>
• Court: Texas Court of Appeals

Page 518

267 S.W. 518

LANCASTER et al v. JARRETT.^*

(No. 2978.)

Court of Civil Appeals of Texas. Texarkana.

December 10, 1924.

Rehearing Denied January 8, 1925.

Appeal from District Court, Harrison County; P. O. Beard, Judge.

Action by Z. L. Jarrett against J. L. Lancaster and others, receivers, for personal injuries. Judgment for plaintiff, and defendants appeal. Affirmed.

See, also, 258 S. W. 271.

At about 5:12 o'clock of the morning of November 10, 1921, appellee, then the engineer in charge of the locomotive of appellants' passenger train No. 3, was injured in his person as a result of a collision between that train, moving west on the main line track of the Texas & Pacific Railway, and freight train No. 66, moving east on said track at a point between Camps and Gladewater. Claiming that the collision was due to negligence of appellants, as receivers in charge of said railway, appellee brought this suit against them for damages, and recovered the judgment for $10,000 from which the appeal is prosecuted.

It appeared from the testimony that in giving orders to train operatives appellants used printed forms, one known as "31" and another as "19." Form 31 was on yellow paper, and was used in giving orders as to the movement of trains. Form 19 was on blue paper, and was used in advising as to the condition of tracks and other matters regarded as of less importance than the movement of trains. Copies of orders issued were delivered to both the conductor and the engineer of a train, and were accompanied by "clearance cards" showing the number of each of the orders and whether it was on a 31 or 19 form, and also showing whether the "block" ahead (meaning in the instant case the section of track between Longview and Gladewater) was clear of or was occupied or would be occupied by other trains. When an order on form 31 was delivered to an engineer appellants' rules required him to read it aloud to the conductor, and in that way ascertain if the order delivered to him was like the one held by the conductor. The rules referred to did not require the engineer to compare an order received by him on form 19 with the one held by the conductor. The witness Robertson, who was appellants' station agent at Longview, testified that he had received five orders from appellants' dispatcher at Fort Worth for delivery to the conductor and engineer of said train No. 3 when it reached Longview. He said he turned over two copies of each of the orders to the conductor, with clearance cards showing the track between Longview and Gladewater to be clear of trains. Turner, the conductor, testified that copies of the five orders and clearance cards were delivered to him as stated by Robertson, and that he (Turner) delivered one of the clearance cards and a copy of each of the five orders to appellee. Both Robertson and Turner testified that among the five orders was one numbered "8," on form 31, as follows, so far as material here: "No. 3 engine 700 wait Gladewater until 5:15 a. m"; and one numbered "14," on form 19, as follows, so far as material here: "No. 3 engine 700 wait Camps until 5:15 a. m."

Appellee, testifying as a witness, said the conductor delivered only four orders and a clearance card to him. He further testified that the order No. 8, referred to above, was one of the four orders delivered to him and was noted on the clearance card, but that the order numbered 14, referred to above, was not delivered to him, and was not noted on the clearance card delivered to him. Having, he testified, order No. 8 directing him to wait at Gladewater, six or seven miles west of Camps, and the clearance card showing the track to be clear to Gladewater, and knowing nothing about order No. 14 to wait at Camps, appellee did not stop the train at that place, but passed on by it and to a point about one mile west thereof, where the collision with the freight train occurred.

This is the second appeal of the case. The pleadings of the parties at the last trial were the same as those relied upon at the first trial, and the testimony was not materially different it seems. A full statement of the case will be found in the report of the former appeal in 258 S. W. 271.

Prendergast & Prendergast and Bibb & Caven, all of Marshall, for appellants.

Davidson, Blalock & Blalock, of Marshall, for appellee.

WILLSON, C. J. (after stating the facts as above).

After telling the jury to find for appellants if they believed order No. 14 was delivered to appellee, nothwithstanding they might also believe he did not know it had been delivered to him, the court, in the sixth paragraph of his charge, instructed the jury to find that appellee was guilty of contributory negligence if they believed from the evidence "that the rules of the defendant required plaintiff to read the train orders delivered to him aloud in the presence of the conductor when the conductor delivered such orders, and shall further believe that, if the plaintiff had read the orders aloud in the presence of the conductor, as required by the rules of the defendant, and that the absence of order No. 14, if it was absent, in plaintiff Jarrett's orders would have been discovered, and would have...