Mexican Cent. Ry. Co. v. Shean

• Decision Date: 24 November 1891
• Citation: 18 S.W. 151
• Parties: MEXICAN CENT. RY. CO. v. SHEAN <I>et al.</I>
• Court: Texas Supreme Court

18 S.W. 151

MEXICAN CENT. RY. CO. v. SHEAN et al.

Supreme Court of Texas.

November 24, 1891.

Commissioners decision. Section B. Appeal from district court, El Paso county; T. A. FALVEY, Judge.

Action by Nora Shean et al. against the Mexican Central Railway Company for the death of William Shean while employed by defendant. Plaintiffs had judgment, and defendant appeals. Reversed.

Hague & Barnhart, for appellant. M. W. Stanton and Brack & Mill, for appellees.

GARRETT, P. J.

Appellant's second and fourth assignments of error present the controlling question in this case, which is that of contributory negligence on the part of William Shean, the deceased, in attempting to couple the cars under the circumstances. The charge complained of in the second assignment is as follows: "* * * If you believe * * * that one of said cars was loaded so that the load projected over the ends of the car, and that in coupling it to another car William Shean was caught between said projecting load and the other car, and thereby killed; that said load projected over the end of said car, and subjected said Shean, as a switchman, to extraordinary or unusual danger, risk, or hazard not incident to the duties of such switchman; that in coupling said cars said Shean used such care as a person of ordinary prudence and skill would usually exercise, under the same or similar circumstances, to prevent said injury, * * * you will find for plaintiffs." In the fourth assignment of error the verdict is assigned as contrary to the evidence, because: (1) The evidence showed that William Shean, deceased, was an old switchman, of many years' experience in handling and coupling cars, when he accepted employment of defendant, and as such he had full knowledge of his duties, and the danger incident thereto. (2) That the evidence showed conclusively that ever since and prior to the time of the entry of William Shean, deceased, into the service of the Mexican Central Railway Company, it was usual and customary, in the operation of said defendant's railroad, that the flat-cars transported over the said road should be so loaded as to have the ends of the materials transported project over the ends of such flat-cars, and that the danger arising from such manner of loading was incident to the occupation of switchmen in the service of defendant. (3) The evidence conclusively showed that said Shean, deceased, prior to the occasion of his death, saw the flat-car which occasioned his death, and the manner in which it was loaded, and had prior thereto coupled said car to a box-car; that he was further informed that it was dangerously loaded, and hazardous for him to attempt to effect a coupling of such car to a box-car; and, well knowing that said flat-car was so loaded that the ends of the boxed street-cars loaded thereon projected over the ends of such car, and thereby rendered any attempt to couple the same to a box-car dangerous and hazardous, he voluntarily attempted to make such coupling, and in such attempt lost his life, by reason of the danger and hazard aforesaid. Deceased...