Lancaster & Wight v. Allen

• Decision Date: 23 December 1918
• Docket Number: (No. 2022.)
• Citation: 207 S.W. 984
• Court: Texas Court of Appeals
• Parties: LANCASTER & WIGHT v. ALLEN.

207 S.W. 984

LANCASTER & WIGHT v. ALLEN.

(No. 2022.)

Court of Civil Appeals of Texas. Texarkana.

December 23, 1918.

Rehearing Denied January 2, 1919.

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

Action by Mrs. Clara Allen, administratrix, against Lancaster & Wight, receivers. Judgment for plaintiff, and defendant appeals. Affirmed.

F. H. Prendergast and Brown & Hall, all of Marshall, for appellant.

S. P. Jones and J. T. Casey, both of Marshall, for appellee.

HODGES, J.

This appeal is from a judgment for $27,000, rendered in favor of the widow and children of T. O. Allen, deceased, against the receivers of the Texas & Pacific Railway Company. Allen was killed as a result of the derailment of the engine on which he was employed as a fireman. The accident occurred near a switch in the railway yards at Texarkana, Tex., as the engine pulling the train was approaching the depot.

The court submitted only two of the grounds of negligence set out in the plaintiff's original petition, a defective switch point, and a defective flange on a wheel of the front trucks of the engine. The appellant contends that the evidence as to a defective switch point was not sufficient to authorize the submission of that issue to the jury. While the testimony does not make clear just what caused the derailment of the engine, evidence was admitted, apparently without objection, which tended to show that the switch point was in a condition to cause the wheel to climb on top of the rail and produce such an accident. We are not prepared to say that this evidence was not sufficient to warrant the submission of that issue to the jury.

There was considerable testimony offered by both sides as to the condition of the flange on a front wheel of the engine trucks. That of the appellee tended to show that the flange was worn to such an extent that it was unsafe to keep the wheel in the service. It appeared from the evidence generally that wheels are constructed so that the angle made by the flange and the tread of the wheel is oblique; that in the course of time the wear resulting from friction tends to make that angle more acute; that the flange becomes thinner, and its inside surface next to the rail becomes more nearly vertical. The appellant introduced in evidence the rules and tests promulgated by the Master Car Builders' Association, which were approved by the Interstate Commerce Commission. Several of appellants' witnesses testified that a gauge had been adopted by which to measure the extent of the wear of the flange and thus determine when the wheel became deteriorated to such an extent that it should be put out of service. They testified that they had applied the gauge to this particular wheel, and that according to the rules it was not subject to condemnation. The state of the evidence was such that the jury might have found either way regarding the condition of the wheel; and their verdict settled the conflict.

Appellants requested, among other special charges, the following:

"It appears in this case that Allen at the time he was killed was engaged in interstate commerce, and the rights of the plaintiff are therefore governed by the act of Congress. 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 company was negligent in that regard."

The refusal to give that charge is assigned as error. It is conceded that Allen was at the time of the injury assisting in operating a train engaged in interstate commerce, and it follows that the act of Congress and the regulations of the Interstate Commerce Commission, so far as applicable, should constitute the law of this case. In 1911 Congress enacted a law entitled "An act to promote the safety of employés and travelers upon railroads by compelling common carriers engaged in interstate commerce to equip their locomotives with safe and suitable boilers and appurtenances thereto." Act Cong. Feb. 17, 1911, c. 103, 36 Stat. 913 (U. S. Comp. St. §§ 8630-8639). The second section (section 8631) is as follows:

"That from and after the first day of July, nineteen hundred and eleven, it shall be unlawful for any common carrier, its officers or agents, subject to this act to use any locomotive engine propelled by steam power in moving interstate or foreign traffic unless the boiler of said locomotive and appurtenances thereof are in proper condition and safe to operate in the service to which the same is put, that the same may be employed in the active service of such carrier in moving traffic without unnecessary peril to life or limb, and all boilers shall be inspected from time to time in accordance with the provisions of this act, and be able to withstand such test or tests as may be prescribed in the rules and regulations hereinafter provided for."

In 1915 this law was amended (Act Cong. March 4, 1915, c. 169, 38 Stat. 1192 [U. S. Comp. St. §§ 8639a-8639d]) so as to make it apply to and include the entire "locomotive and tender and all of parts and appurtenances thereof." The act provided for a system of official inspection to be conducted under rules and tests approved by the Interstate Commerce...