Missouri, K. & T. Ry. Co. v. Riddle

• Decision Date: 15 October 1925
• Docket Number: (No. 254.)<SMALL><SUP>*</SUP></SMALL&gt
• Citation: 277 S.W. 164
• Parties: MISSOURI, K. & T. RY. CO. OF TEXAS v. RIDDLE et al.
• Court: Texas Court of Appeals

Page 164

277 S.W. 164

MISSOURI, K. & T. RY. CO. OF TEXAS v. RIDDLE et al.

(No. 254.)^*

Court of Civil Appeals of Texas. Waco.

October 15, 1925.

Rehearing Denied November 12, 1925.

Appeal from District Court, McLennan County; James P. Alexander, Judge.

Action by Mrs. J. A. Riddle and others against the Missouri, Kansas & Texas Railway Company of Texas. From an adverse judgment, defendant appeals. Affirmed.

Spell, Naman & Penland, of Waco, for appellant.

Sam R. Scott, of Waco, for appellees.

BARCUS, J.

This suit was instituted by Mrs. Riddle as administratrix of the estate of J. A. Riddle, deceased, against appellant, seeking to recover damages under the federal Employers' Liability Act (U. S. Comp. St. §§ 8657-8665) occasioned by her husband, J. A. Riddle, being killed while in the employ of appellant. It was an admitted fact that at the time of the injury the appellant and the deceased, Riddle, were engaged in interstate commerce and that the deceased was in appellant's employ.

At the time the deceased was killed he had been sent by the foreman in charge of the road bridge gang to stop all in-coming trains because of a bridge being unsafe for trains to cross. Mr. Riddle, as such flagman, went the proper distance back and gave the proper signals. The engineer testified that he saw the flagman and received the signal to stop at least 1,000 feet before reaching the flagman, and that he answered the signal by two blasts of the whistle, which meant under the rules that he had received the signal and would stop, and that it was his duty as engineer to bring the train to a full stop and receive the message from the flagman; that when he received the signal to stop he applied only the service application of air to the brakes, which had the effect of slowing down the train from 25 or 30 miles per hour down to 18 or 20 miles per hour; that he did not attempt to bring the train to a complete stop before reaching the flagman; that he intended to lean out of the engine and receive the message from the flagman as he passed him. The rear brakeman testified that if the engineer had used the emergency brakes when he first saw the flagman he could have stopped the engine by the time it reached him. The engineer testified that the deceased flagman remained on the track until the engine was within 100 to 250 feet, when he, with deliberation, walked off of the track and then turned around and stepped toward the track and stopped as though he were picking up something off of the rail, when the step on the pilot struck him on the head.

The fireman, who was riding on the engine tank near the engineer on the opposite side of the train, testified that the flagman remained on the track until the train was within about 100 feet, and that he then turned east to walk off of the track and was lost to the view of said fireman by reason of the engine coming between him and the flagman.

The rear brakeman testified that he saw the flagman about 1,000 feet ahead of the engine flagging the train and that he was at said time in the middle of the track. The train that hit Riddle was traveling north. Miller testified that Riddle had his right cheek bone broken just under his right eye, and that there was a V-shaped wound on the top of his head.

The appellee, as grounds of negligence, claimed that the injury occurred within the city limits of Waco, and that, under the ordinances of the city of Waco, the freight train was required to reduce its speed within the corporate limits to 6 miles an hour, and that, under the rules of the railway company, when an engineer received the flag signal to stop, he was required to bring the train to a full stop by the time he reached the flagman, and that in the violation of said city ordinance, and in the violation of said rule of the railway company with reference to the handling of trains, the engineer was negligent, and that such acts of negligence were the proximate cause of the injury which resulted in the death of the flagman.

The defense of appellant was a general denial, and it specially pleaded that the death of the deceased was occasioned by his sole negligence, in that after he, the flagman, had reached a place of safety, he walked back or stooped over on the track, where he was struck by the engine.

The cause was submitted to the jury on special issues. The jury found that the accident occurred within the corporate limits of the city of Waco; that the train was running more than 6 miles an hour, and that the speed of the train was the proximate cause of the injury; and further found that failure of the engineer to stop the train before he passed the flagman was negligence, which was the proximate cause of the injury.

Appellant requested the court to instruct the jury to return a verdict for it because the uncontroverted evidence shows that after the flagman had reached a place of safety he then voluntarily stooped over the track so that he was struck by the engine, and because the evidence shows that the flagman, after he had given the signal to the engineer to stop and had reached a place of safety, voluntarily returned to a place of danger, where he was struck. The court refused to give said peremptory instruction, but submitted to the jury said issues, which the jury answered in the negative.

The testimony shows that when the flagman was struck the train was running at least 18 to 20 miles an hour, and that from the time the engineer received the signal to stop he had reduced the speed of the train only 5 to 7 miles per hour, but that he could, by use of the emergency brake with which the train was equipped, have brought the train to a complete stop by the time it reached the flagman. The engineer testified that he recognized the signal as being a positive command to stop the train and ascertain the cause. In utter disregard, however, of this command to stop, he only applied the service brake and was slowing the train down, and after his engine hit the flagman, he testified, he ran from 800 to 1,000 feet before he could bring his train to a stop. The jury found, and the evidence is sufficient to sustain the finding, that the injury was inflicted within the corporate limits of the city of Waco. The engineer testified that he knew it was a violation of the city ordinances for the train to run more than 6 miles an hour within said corporate limits.

Appellant contents that the testimony is undisputed that deceased, before the train struck him, had reached a place of safety and then voluntarily placed himself in a position to be struck by the train. This issue was submitted to the jury and answered against appellant, and their finding is sustained by the testimony. The engineer testified that the flagman was on the track when the engine was within 100 to 250 feet, and the fireman testified that he was on the track when the train was within 100 feet of him. The flagman started to leave the track, walking east. He was struck on the right cheek by the train going north. If he had been facing west when the train hit him he would have been struck on the left cheek. It was for the jury to determine whether he did, could, or would walk with deliberation off the track and then turn around and walk back onto the track while the train was running 100 to 200 feet while running at the rate of 18 or 20 miles per hour, and their verdict is supported by the testimony.

Appellant further contends that it was the duty of the flagman after he had flagged the train to take care of himself and get to a place of safety. Under the rules of the railroad, with which the flagman was familiar, it was the duty of the engineer to bring the train to a stop by the time it reached the flagman. It was also the duty of the engineer to reduce the train's speed to 6 miles per hour by the time it reached the corporate limits of the city of Waco, and we cannot say as a matter of law that the flagman did not have a right to rely upon the train stopping by the time it reached him, or at least being reduced to a slow rate of speed, and that he did not discover the train would not so stop or be reduced in speed in time for him to reach a place of safety. Under the federal Employers' Liability Act it is provided:

"The fact that the employee may have been guilty of contributory negligence shall not bar a recovery, but the damages shall be diminished by the jury in proportion to the amount of negligence attributable to such employee." U. S. Comp. St. § 8659.

It has been universally held that the questions of negligence and proximate cause are ordinarily ones for the jury to determine, and, under the federal statute, contributory negligence on the part of the employee is not a bar against recovery. Grand Trunk W. R. Co. v. Lindsay, 233 U. S. 42, 34 S. Ct. 581, 58 L. Ed. 838, Ann. Cas. 1914C, 168; Philadelphia & R. Ry. Co. v. Marland, 239 F. 1, 152 C. C. A. 51; Southern Ry. Co. v. Mays, 239 F. 41, 152 C. C. A. 91; Illinois Central Ry. Co. v. Skaggs, 240 U. S. 66, 36 S. Ct. 249, 60 L. Ed. 528; K. C., M. & O. Ry. Co. v. Estes (Tex. Com. App.) 228 S. W. 1087; Gulf, Col. & Santa Fé Ry. Co. v. Cooper (Tex. Civ. App.) 191 S. W. 579 (writ refused); Lancaster v. Garrett (Tex. Civ. App.) 258 S. W. 271; Payne v. Young (Tex. Civ. App.) 241 S. W. 1094.

The engineer in charge of the train which killed the flagman was negligent, both in failing to stop the train in response to the signal given him by the flagman and in failing to reduce the rate of speed by the time he reached the corporate limits of Waco to 6 miles per hour, and it was a question of fact as to whether either of these acts of negligence was the proximate cause of the injury to the deceased.

Appellant, by a number of assignments of error, complains of the court's action in the admission of certain testimony. We have carefully examined each of said assignments and, without discussing each of them separately, we do not think any reversible error is shown.

All of appellant's...