Lancaster v. Jarrett

• Decision Date: 19 December 1923
• Docket Number: (No. 2823.)
• Citation: 258 S.W. 271
• Parties: LANCASTER et al. v. JARRETT.
• Court: Texas Court of Appeals

258 S.W. 271

LANCASTER et al. v. JARRETT.

(No. 2823.)

Court of Civil Appeals of Texas. Texarkana.

December 19, 1923.

Rehearing Denied January 24, 1924.

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

Action by Z. L. Jarrett against J. L. Lancaster and others, receivers. From a judgment for plaintiff, defendants appeal. Reversed and remanded for new trial.

A head-on collision of regular through passenger train No. 3, going west, and regular freight train No. 66, going east, occurred at about 5:12 o'clock a. m. on the main line track of the Texas & Pacific Railroad, at a point one and one-eighth miles west of Camp's Switch. The appellee, who was the regular locomotive engineer operating passenger train No. 3, sustained personal injuries as a result of the collision, and he brings this action for damages.

The negligent acts of the appellant upon which the appellee relies are set forth in his petition substantially as follows: (1) That the authorized agent of the railway company delivered to plaintiff a train order directing him, as the engineer, to operate passenger train No. 3 as a superior train from Longview Junction west to Gladewater, a telegraph station, and to wait at Gladewater until 5:15 a. m., and accompanied such train order with a "clearance card," reciting that the "block" or space between Longview Junction and Gladewater was "clear" of any other train; that in truth and in fact, and without any notice thereof to plaintiff, freight train No. 66 was at the time being operated by the defendant over the main line track from Gladewater to Camp's Switch, in a manner and at a time such as to cause it to meet passenger train No. 3 on the main line between Camp's Switch and Gladewater, causing a head-on collision; (2) that the conductor of passenger train No. 3, charged with the duty of directing the engineer to stop the train, negligently permitted the said train No. 3 to pass Camp's Switch, knowing at the time that he had direct orders to wait there for freight train No. 66 until 5:15 o'clock a. m.

The defendant answered by general denial, pleaded contributory negligence, and further specially averred, in avoidance of any liability, that the direct and proximate cause of the plaintiff's injury was his failure and refusal to read and his failure of compliance with and obedience to train order No. 14 commanding him to wait at Camp's Switch until 5:15 a. m. for east-bound freight train No. 66.

The evidence shows that freight train No. 66 was a regular freight train being operated east to Longview Junction, and that passenger train No. 3 was a regular through passenger train carrying both interstate and intrastate passengers. The appellee was the regular locomotive engineer of the passenger train on its run between Marshall and Fort Worth. On the particular run involved in the suit the train left Marshall, going west, about 35 minutes later than its schedule time. It arrived at Longview Junction about 4:45 o'clock a. m., and left there about 4:55 o'clock a. m., which was some 55 minutes later than its schedule time. Regular passenger train No. 23 from New Orleans, bound west, was regularly scheduled to run ahead of passenger train No. 3 out of Marshall, but on this occasion was some 2 hours or more late, and had not reached Longview Junction, and as a consequence passenger train No. 3 was made the superior train in the run west out of Longview Junction. Longview Junction is a regular stop for passenger and freight trains, and is a regular telegraph station with a telegraph operator stationed there. The engineers and the conductors of trains receive orders at this place. Gladewater is the next regular telegraph station, and is located about 14 miles west of Longview Junction. Between Gladewater and Longview Junction there are maintained two switch tracks — one at Willow Springs, 4 miles west from Longview Junction, and the other at Camp's Switch, 9 miles west of Longview Junction. Under the rules and practices of the railway company it was the duty of the conductor to go to the telegraph operator at Longview Junction and to procure from him all the train orders to control the movements of the train between Longview Junction and Gladewater. The space between these two places is termed a "block." At the time these orders are issued it is the duty of the telegraph operator to issue to the conductor for the engineer either a "caution card" or a "clearance card." A caution card informs the engineer of any danger arising from the presence of any other train that may be operating in the "block." A clearance card is one showing on its face the "train orders" by numbers and the form they are issued on, and either that "the block is clear" or "the block will be occupied," as the true facts might be. There are two forms for train orders. One, that is issued on blue paper, is styled "form No. 19," and has reference to the condition of tracks, water tanks, etc. The other is issued on yellow paper, and is styled "form No. 31," and has reference to the movements of trains. When a conductor receives orders on form No. 31 with reference to the movement of trains, he must sign for them when he takes them from the telegraph operator's office. He does not have to sign for orders on form No. 19. These orders are all issued in duplicate; one set for the conductor, and one set for the engineer. The rules of the railway company require the engineer, when he receives the train orders from the hands of the conductor, to read the orders aloud to the conductor so that the orders can be compared. When passenger train No. 3 reached Longview Junction, the following orders, applicable to passenger train No. 3, had been received by the telegraph operator from the train dispatcher's office, and had been written out, viz:

Order No. 911, reading:

"All trains west take full tank water at Big Sandy or Angler. All trains east favor water station Wills Point."

Order No. 912, reading:

"All trains reduce to 4 miles per hour over bridge 236-7, and 5 miles per hour over bridge 2005."

Order No. 3, reading:

"Engine 518 run second No. 67 Longview Junction to Fort Worth ahead of No. 23 and No. 3 until overtaken."

Order No. 8, reading:

"No. 3 engine 700 wait Gladewater until 5:15 a. m.; Wilkins 5:22 a. m.; Ferguson 5:35 a. m.; Hawkins 5:50 a. m. No. 23 engine 707 wait Willow Springs until 5:25 a. m.; Gladewater 5:35 a. m.; Ferguson 6:05 a. m. No. 3 engine 70 run ahead of No. 23 engine 707 Longview Junction until overtaken."

At the same time the telegraph operator made out a clearance card, applicable to passenger train No. 3, which recited: "Block is clear." A few minutes before passenger train No. 3 left, the following train order, and which was the last one, was received by the telegraph operator from the dispatcher's office, viz.:

"Train order No. 14 No. 3 engine 700 wait Camp's until 5:15 a. m., and No. 23 engine 707 wait Willow Springs until 5:45 a. m. for first No. 66 engine 538."

This order was issued to change order No. 8, and to annul it. This order, as the telegraph operator testified, "was received on the `19 form' at 4:48 a. m.," which was about "6 or 7 minutes" before the time passenger train No. 3 left Longview Junction. The telegraph operator further testified:

"Yes, I issued order 14 on form 19. We have a form that we call 31, that is on yellow paper. The 19 form is on blue paper. The 19 is used to help out when you don't get the conductor's signature to them, usually handed up without stopping the train. The 31 order takes a higher rank than a 19 order. The 14 order was the last order I received. I did not give the conductor a caution card. The only reason I had for not giving him a caution card was that I would have to take up his clearance card and make out a caution card, and it would take some length of time, and I was in a hurry to get them out, and the conductor was also in a hurry to move his train. I should have torn up the clearance card and have given him one showing `the block is occupied.' It would have been the proper procedure and good railroading for me to have given another card in the place of this one. Under the rules and regulations I should have done so. * * * The dispatcher told me to tell the conductor that his train would go to Camp's Switch. I didn't put that statement in writing. I told the conductor orally. I do not know whether he told the engineer or not. I told the conductor, and he was in charge of the train. The conductor is the boss of the crew, and his crew are supposed to obey him."

The conductor of passenger train No. 3 went to the telegraph operator for orders, and, as testified, he received from the operator orders 911, 912, 3, 8, and 14, together with a clearance card. The conductor testified:

"I went to the operator's office, and got the orders for my train. I got copies of these five orders I have here now in my hand. I recognize those orders as copies of the ones I got. I got a copy of clearance card like this one. I got orders 3 and 8 on 31 form, and orders 911, 912, and 14 on 19 form. I got those orders in the telegraph office at Longview Junction, and they were delivered to me by the operator. I got two copies of each order and of the clearance card. Orders 3 and 8 were on the 31 form, which I signed for; the other three orders were not to be signed for by the conductor, but by the operator. On the clearance cards there appeared and showed in the space for `train orders' under `form 31' the `orders 3, 8 for your train,' and under `I have orders form 19' the `orders 911, 912, 14.' Each clearance card showed that. He handed these orders to me at the desk, and I separated them; that is, I stacked them in two different stacks. On the top of the engineer's stack I put the clearance card. I put a register check on the card and the five orders. I carried them up and delivered them direct to the engineer, and delivered them to him in person. When I delivered the...