Lynch v. Texas & P. Ry. Co.

• Decision Date: 08 December 1910
• Citation: 133 S.W. 522
• Parties: LYNCH v. TEXAS & P. RY. CO.
• Court: Texas Court of Appeals

133 S.W. 522

LYNCH v. TEXAS & P. RY. CO.

Court of Civil Appeals of Texas.

December 8, 1910.

Rehearing Denied January 19, 1911.

Appeal from District Court, Bowie County; P. A. Turner, Judge.

Action by J. H. Lynch against the Texas & Pacific Railway Company. Judgment for defendant, and plaintiff appeals. Reversed and remanded.

The suit is to recover damages for personal injuries caused by alleged negligence of the railway company, and the court peremptorily instructed a verdict for appellee. The petition alleges, and it was substantially shown, that appellant was in the employ of the appellee and doing the duties of a hostler, which were to watch for the arrival of engines in the yards and be at the place where the engines would stop, and after they were disconnected from the trains to take charge and control of them and operate them to the turntable and roundhouse. It was also his duty to spot or place engines. At the time of his injury a freight train came into the yard from the southwest, and it was a long and heavy train consisting of many cars, and in passing him appellant hurried and caught hold of the ladder, or steps, on the side of one of the cars and began to climb toward the top of the car for the purpose of getting on the car and walking over the train to the engine so as to be on the engine when it stopped and to take charge of it and carry it to the turntable and rounhouse. While climbing at the side of the car, he was suddenly pressed violently against a box car standing on an adjacent cut-off track, which only cleared six or eight inches, was crushed between the cars, knocked to the ground, and received severe and permanent injuries. It was alleged that the appellant did not know the box car was on the particular cut-off track, that it was dark and he could not see the box car, and that to ride on the car as he did was in accordance with the usual and customary manner of hostlers in this yard. The negligence is laid on placing and leaving the box car standing on the cut-off track with its end so near the adjacent track as to clear only six or eight inches.

J. M. Terrell, for appellant. Glass, Estes, King & Burford, for appellee.

LEVY, J. (after stating the facts as above).

It was the undisputed proof that appellant's service and duty was to take engines in and out of the roundhouse. He took charge and control of incoming engines in the yard when the "high ball man" cut them loose from the cars. His connection with the particular train, therefore, it seems, commenced when it reached a final standstill in the yard. It would seem, therefore, when tested by the actual duties of his service, that by his act in riding on the side of a box car he had put himself in a position and place where it was not necessary or proper that he should have been in the performance of his duties. And if he were riding for his convenience, and not in the necessary or proper discharge of his duties, the injury received, it would seem, did not arise out of any act or at the place of his usual employment. The cars were not furnished as an instrumentality to facilitate the performance of his duties. It may be said, as a general statement of the doctrine,...