Lancaster & Wight v. Allen

• Decision Date: 14 January 1920
• Docket Number: (No. 3274.)
• Citation: 217 S.W. 1032
• Parties: LANCASTER & WIGHT v. ALLEN.
• Court: Texas Supreme Court

Page 1032

217 S.W. 1032

LANCASTER & WIGHT v. ALLEN.

(No. 3274.)

Supreme Court of Texas.

January 14, 1920.

Error to Court of Civil Appeals of Sixth Supreme Judicial District.

Suit by Mrs. Clara Allen, administratrix, against Lancaster & Wight, receivers. Judgment for plaintiff affirmed by the Court of Civil Appeals (207 S. W. 984), and defendants bring error. Reversed and remanded.

F. H. Prendergast, of Marshall, for plaintiffs in error.

S. P. Jones, of Marshall, for defendant in error.

GREENWOOD, J.

This suit was brought by defendant in error as the personal representative of T. O. Allen, deceased, against plaintiffs in error, as receivers of the Texas & Pacific Railway Company, to recover damages for the death of T. O. Allen from injuries suffered by him while employed by said receivers in interstate commerce.

Defendant in error alleged, and offered evidence to establish, that T. O. Allen's death resulted from defects due to the receivers' negligence, in a switch point on the receivers' track, and in a flange on a locomotive wheel, which caused the derailment of the locomotive on which T. O. Allen was discharging his duties to the receivers as fireman.

The defect in the flange of the locomotive wheel on which defendant in error relied in her pleading and proof was that it had become so worn as to cause the locomotive wheel and truck to climb the rail and derail the locomotive.

Plaintiffs in error duly answered, and introduced evidence to show that the switch point was not defective, and to show that the flange of the locomotive wheel was not worn to the extent required in order to be defective under the Safety Act of Congress and the rules prescribed thereunder by the Interstate Commerce Commission.

The charge of the trial court authorized a verdict for defendant in error on the findings: First, that the flange on the locomotive wheel had become worn, so as to render unsafe the running of the locomotive, or that the switch point had become defective, so as to cause the running of the locomotive to be unsafe; second, that either the defective flange (if defective) or the defective switch point (if defective) caused the engine to be wrecked and T. O. Allen's death; and, third, that the flange or switch point had been permitted to become defective by reason of the negligence of the receivers.

A verdict was returned for defendant in error, and the judgment thereon was affirmed by the Court of Civil Appeals. 207 S. W. 984.

The trial court refused a special charge requested by plaintiffs in error as follows:

"It appears in this case that Allen at the time he was killed was engaged in interstate commerce, and the rights of the plaintiffs are therefore governed by the act of Congress. It appears in the evidence that the Interstate Commerce Commission, acting by virtue of the power granted them by the act of Congress, had made certain rules governing what condition of flanges of a locomotive wheel makes it safe and what condition makes it unsafe. If you believe in this case that the flanges on the wheel were in accordance with said rules enacted by the Interstate Commerce Commission, then you cannot find that the railroad was negligent in that regard."

By proper assignment complaint is made by plaintiffs in error of the decision of the Court of Civil Appeals that this special charge was correctly refused.

The charge which was refused made compliance by the receivers with the requirements of the act of Congress of March 4, 1915, the test of negligence with respect to the flange of the locomotive wheel. The charge which was given made the test of negligence with respect to the flange the exercise of ordinary care to keep the flange safe for the operation of the locomotive.

In our opinion, the proper test was stated in the refused charge. By the act of Congress approved February 17, 1911 (36 Statutes at Large, ch. 103, p. 913, 3 U. S. Statutes Annotated, p. 522 [U. S. Comp. St. §§ 8630-8639]), it was made unlawful for any common carrier in the United States after July 1, 1911, to use any locomotive engine propelled by steam power in moving interstate or foreign traffic unless the boiler and its appurtenances were in proper condition and safe to operate, without unnecessary peril to life or limb, and such boilers were required to be able to withstand such tests as might be prescribed in rules and regulations to be approved or prepared by the Interstate Commerce Commission, which rules and regulations were to be obligatory. The act further provided for careful inspection of boilers and their appurtenances to secure the observance of the act by all common carriers.

By the act of Congress approved March 4, 1915 (38 Statutes at Large, c. 169, p. 1192, 3 U. S. Statutes Annotated, p. 529 [U. S. Comp. St. §§ 8639a-8639d]), the act of February 17, 1911, was amended so as to apply to and include the entire locomotive and tender and all parts and appurtenances thereof.

The Interstate Commerce Commission approved rules and regulations prescribing with particularity the extent of wear on the flange of a locomotive wheel which renders it defective and which requires its discontinuance from service.

We have no doubt that the amended act of Congress must determine the liability of the...