Missouri, K. & T. Ry. Co. of Texas v. Jones

• Decision Date: 23 April 1904
• Citation: 80 S.W. 852
• Parties: MISSOURI, K. & T. RY. CO. OF TEXAS v. JONES et al.<SMALL><SUP>*</SUP></SMALL>
• Court: Texas Court of Appeals

80 S.W. 852

MISSOURI, K. & T. RY. CO. OF TEXAS v. JONES et al.^*

Court of Civil Appeals of Texas.

April 23, 1904.

Appeal from District Court, Hunt County, H. C. Connor, Judge.

Action by Sallie Jones and others against the Missouri, Kansas & Texas Railway Company of Texas. From a judgment for plaintiffs, defendant appeals. Affirmed.

T. S. Miller and Perkins, Craddock & Wall, for appellant. Bennett & Jones, for appellees.

BOOKHOUT, J.

On the 19th of March, 1903, Sallie Jones instituted this suit against the appellant, for herself and in behalf of her minor children, Annie, Pearline, Lennie, and A. G., to recover damages on account of the death of Jack Jones, who was her husband and the father of the said minor children. The defendant answered by a general demurrer, general denial, and a special answer of contributory negligence, in that the deceased, Jack Jones, was intoxicated at the time he was injured and killed, and that by reason of intoxication he stepped or fell immediately in front of the engine, or fell underneath one or more of the wheels of the tender by the side thereof, and was run over and killed. A trial resulted in a verdict and judgment for plaintiffs for $10,416, and defendant appealed.

Conclusions of Fact.

For the purpose of coaling its engines in Greenville the appellant used a platform about 15 feet wide and perhaps 100 or more feet long. About the middle of this platform was situated a derrick or hoist, operated by air, which was supplied by the engine being coaled. The derrick consisted of three upright pieces on the platform; the center piece being designated as the crane, hoist, or "horse." At the top of this hoist were arms, extending in each direction, to which the buckets of coal were attached, and then the arms revolved, so as to carry the coal from over the platform to the tender of the engine, where it was dumped. This coal platform was parallel with appellant's main track, which was situated just west of the platform. The air or lifting power was conveyed from the engine to the hoist by means of a hose, which would be attached at one end to the train line hose at the rear end of the tender being coaled, after the same was stopped at the proper place, and at the other end to a pipe running along the west side of the platform, communicating with and constituting a part of the machinery of the hoist; said pipe extending equal distances on each side of the middle upright piece. If an engine were headed south, the hose would be attached at the north end of this pipe; but, if headed north, it would be attached at the south end of the same. Just north of this platform was situated the sandhouse, or place where the engines were supplied with sand. North of that a short distance was situated the inspector's office, and north of that, across Henry street, was situated the flagman's shanty. The coal platform was 3 or 4 feet high, and it was about 30 steps, or 90 feet, from the sandhouse to the place where the engines were coaled. The hose would always be attached by one of the colored coal heavers who worked on the platform.

C. B. Lyle was the hostler and in charge of defendant's engine No. 192. This engine and its tender was backed up from defendant's roundhouse, which was situated about 300 yards south of the coal chute, along appellant's main track, by the coal chute, to the sandhouse, for the purpose of having the sand box filled. After it was sanded, it was moved south over the same track to the coal chute, to take coal. It was moving about two miles per hour, and had its headlight burning. About this time Jack Jones, the deceased, who was on the platform of the coal chute, jumped down by the side of the track to attach the hose to the tender. It was the duty of Jack Jones to attach this hose. There was coal on the ground by the side of the track, and this caused him to slip and fall across the track. He was run over and injured, from which death resulted. In addition to the light furnished by the headlight of the engine, Jack Jones' lighted torch was sitting on the platform near where he jumped therefrom. There was also a burning torch hanging on the coal chute, about as high as a man's head.

In deference to the verdict we find that the employés of defendant operating the engine did not use ordinary care to keep a lookout for persons on the track, and that in this respect they were negligent, and that such negligence was the proximate cause of the injuries to Jack Jones; that, had a proper lookout been kept by said employés, they could and should have discovered Jack Jones upon the track in time, by the use of the means at their command, to have stopped the engine and averted injuring him; and that Jack Jones was not guilty of contributory negligence, and by his death appellees have suffered damages in the amount found by the jury.

Opinion.

Complaint is made of the following paragraph of the charge of the court: "It is the duty of a railway company's servants, who operate its engines along a portion of its track that is commonly used by its employés, or over and about which its employés commonly pass in the discharge of their duties, to exercise `ordinary care' in keeping a lookout to discover the presence of such employés on or in close proximity to the track at such point, and to use all the means in their power, consistent with safety of the engine and its operatives, to stop the engine to prevent a collision with or injury to such employés." The contention is that this charge is not warranted by the pleadings, and that there is no evidence that the deceased was ever in a position, in close proximity to the track, where he might have been seen by those on the engine, or where it would become the duty of those on the engine to see him and stop the engine. The petition did charge that the "agents and servants of appellant, operating its engines at said point, might reasonably and at all times anticipate or expect the presence of persons on said portion of said track, or in dangerous and perilous situation in close proximity thereto, and that appellant knew, or by the exercise of ordinary care could have known, that the operation of its engines at said point was attended with great peril and hazard to the lives and safety of its employés working in said yards, and on and around said coal chute."

C. B. Lyle, the hostler in charge of the engine, testified: "I knew the coal heavers worked there all the time. I knew that they had to get off of the platform to connect the hose. The coal heavers working there were bound to be there somewhere. I knew that they were in the habit of getting down just before the engine got there, just ahead of the engine." The charge complained of announced a correct principle, and we think the issue presented was fairly raised, both by the pleadings and evidence.

Nor is this charge subject to the criticism that it makes it the duty of the operatives of the engine, when approaching at a place where the track is commonly used by the employés, to stop the engine in order to avoid injuring such employés. The only construction which the jury could have placed upon the charge was that it made it the duty of the operatives of the engine to use ordinary care to keep a lookout to discover employés of the railroad upon or in close proximity to the track, and, if the employés were discovered in such position, to use all means in their power to...