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

• Decision Date: 06 March 1909
• Citation: 117 S.W. 1043
• Court: Texas Court of Appeals
• Parties: MISSOURI, K. & T. RY. CO. OF TEXAS v. WILLIAMS et al.<SMALL><SUP>†</SUP></SMALL>

117 S.W. 1043

MISSOURI, K. & T. RY. CO. OF TEXAS v. WILLIAMS et al.^†

Court of Civil Appeals of Texas.

March 6, 1909.

Rehearing Denied March 27, 1909.

Appeal from District Court, Hunt County; B. L. Jones, Judge.

Action by Ellen Williams and others against the Missouri, Kansas & Texas Railway Company of Texas for the death of plaintiffs' decedent. From a judgment for plaintiffs, defendant appeals. Affirmed.

Peniel is a post office in Hunt county, Tex., at which there is a store and a few houses adjacent to appellant's track. Appellant's passenger trains do not stop at Peniel, and the mail is received and delivered from the cars by means of a mail crane. On May 22, 1907, M. A. Roberts, postmaster at Peniel, assuming that appellant's mail train was on time, placed the mail sack upon the crane and left it in position to be taken off in the usual way. However, the mail train was behind time, and before it reached Peniel a freight train passed upon which R. L. Williams was engineer, and as his head was protruding from the window it was struck by the crane, and his death immediately resulted. Appellees, wife and children of said Williams, instituted this suit to recover of the railroad company damages in the sum of $50,000 alleged to have resulted to them from his death. The issues of negligence submitted in the charge were: First, construction and maintenance of the mail crane too close to the track, and second, permitting the track to become defective so as to cause the engine to lean toward the crane. A trial before a jury resulted in a verdict and judgment in favor of appellees for $25,000, apportioned as follows: $10,000 to Mrs. Ellen Williams, $4,000 to Annie Williams, $5,000 to Mildred Lee Williams, and $6,000 to Robert Lee Williams. Appellant's motion for new trial having been overruled, an appeal was duly perfected to this court.

Coke, Miller & Coke and Head, Dillard, Smith & Head, for appellant. Wolfe, Hare & Maxey, for appellees.

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

Error is assigned to the fifth paragraph of the court's charge, which is as follows: "If you believe from the evidence that the mail crane by which Robert Lee Williams was struck and killed was so near the defendant's railway track as that same was dangerous to the deceased, Robert Lee Williams, while he was engaged in operating the engine upon which he was at the time he was killed; and if you further believe from the evidence that a person of ordinary care would have continued in the service of the defendant in the capacity of locomotive engineer with such knowledge of the location of said mail crane and the danger of operating an engine over defendant's track by where same was located, as you may believe said Robert Lee Williams had; and if you further believe from the evidence that in erecting and maintaining said mail crane the distance it was from the track at the time said Williams was killed, defendant was guilty of negligence; and if you further believe that such negligence, if any, was the proximate cause of the death of said Robert Lee Williams— you will find for plaintiffs and assess their damages under instructions hereinafter given, unless you find for the defendant under other instructions given you."

It is insisted that the evidence was not sufficient to authorize the submission to the jury of the issue as to whether or not appellant was guilty of negligence in erecting and maintaining the mail crane the distance it was from the track at the time Williams was killed. The mail crane is an upright post or column on the top of which there is a piece of timber or beam hung on to this upright post by a hinge or pivot. Further down on this upright is another beam not so long and attached to the post by a hinge or pivot. On the ends of these beams there are iron pivots, on which the rings in the bottom of the mail sack are hung. The contrivance on the car which catches the mail sack is called the "catcher," and consists of an iron arm in the shape of a V attached by hinges or loops to an iron bar on the side of the car, and when this catcher is in position to catch the mail sack it extends out about 32 inches from the side of the car. When it is desired to deliver mail to a train, the arm or beam of the crane is pulled down, and these arms are extended at right angles towards the track, and the mail sack hung on the pivots in the ends of these arms. The weight of the mail sacks retains the arms in this position until the sack is taken off by the passing train, when the arm automatically straightens up. The evidence showed that it was 51½ inches from the wooden beam when extended to the west rail of the track upon which the train was moving. The track was 4 feet 8½ inches wide. The cab of the engine was 10 feet wide. Taking the width of the track, 4 feet 8½ inches from the width of the cab, 10 feet, we have 63½ inches left. Half this amount, 31¾ inches, gives us the distance the cab extended over the track. Taking this distance, 31¾ inches, from the distance the wooden beam was from the track, viz., 51½ inches, we have 19¾ inches. On the ends of the wooden beams were iron clips on which the mail sack was hung, and these were six inches long, which, taken from 19¾ inches, leaves 13¾ inches. It was shown that the natural swing of the engine on its springs when the track was in good repair was four inches, which, when taken from 13¾ inches, leaves 9¾ inches as the clearance when the track was in good repair and nothing but the usual expected. It was admitted that the mail car extended over the track the same distance as the cab of the engine, and the undisputed evidence showed that the mail hook or catcher bar extended out from the car 32 inches, and that it would take up the mail "just so the catcher bar extends beyond the mail sack." Applying the above figures, it is seen that it was not necessary for the crane to have been placed so near the track. The evidence showed that these cranes are not set the same distance from the track. It appears from the evidence that the deceased while in the discharge of a duty required of him by his employment, and while in his proper place, was struck and killed by a mail crane erected by appellant on its right of way near its track, and there being no evidence showing that at the time deceased was unnecessarily exposing himself to danger or doing any act which was not required in the proper discharge of his duties, and there being evidence that said mail crane might have been erected at a greater distance from the track without interfering with its proper use, it was for the jury to say whether, in placing the same where it was, appellant was guilty of negligence. Railway v. Stephenson, 22 Tex. Civ. App. 220, 54 S. W. 1086; Whipple v. New York, N. H. & H. R. Co., 19 R. I. 587, 35 Atl. 305, 61 Am. St. Rep. 796. The rule is that the trial court is never justified in taking from the jury a question of fact, except in case the evidence is such that there is no issue made for the jury to determine. Choate v. Railway Co., 90 Tex. 88, 36 S. W. 247, 37 S. W. 319; Railway Co. v. Kime, 94 Tex. 649, 54 S. W. 240; Joske v. Irvine, 91 Tex. 582 44 S. W. 1059. The trial court did not err in charging the jury as set forth in the paragraph of the charge above quoted.

The sixth paragraph of the charge is assailed as error, which paragraph is as follows: "Again, even if you do not believe from the evidence that the mail crane where it stood was dangerous to deceased, Williams, while operating the engine, and you do not believe that defendant was guilty of negligence in erecting and maintaining said mail crane where it stood, yet if you believe from the evidence that the defendant's track and roadbed at, along, and about where said mail crane stood was defective and out of repair, and that by reason of such defective condition, if any, of said track and roadbed, the same was dangerous for use by the said Robert Lee Williams in the discharge of his duties in operating an engine by where said mail crane stood, and if you further believe from the evidence that in permitting said track and roadbed to be defective and out of repair the defendant was guilty of `negligence,' as this term has been hereinbefore defined to you, and if you further believe from the evidence that such negligence, if any, was the direct and proximate cause of the death of said Robert Lee Williams, then you will find for plaintiffs and assess their damages under instructions hereinafter given, unless you find for the defendant under other instructions given you." The proposition presented is that the evidence in this case was not sufficient to authorize the submission to the jury of the issue as to whether the alleged defect in the track did in fact cause the death of Williams. To find that it did it will be necessary to base a presumption upon a presumption, which is not permissible. This contention is not sustained.

The witness Kern testified: "I made an examination of the ties to see their condition, also the rails, and found, at a point about a foot and a half north of a line directly east from the base of the mail crane to the track, one tie that was very rotten on the west end. It was rotten right under where the rail crosses it and had a piece broken out of it about 2½ inches or 3 inches square and about 18 inches long from the rail clear out to the end of the tie. At 7½ feet north of the mail crane there was another tie that was very rotten right immediately under the rail, but not broken. At 12 feet north there was another very rotten tie with a similar piece broken out like the first one described. As to the condition of the spikes along about the location of the mail crane on the inside of the west rail for a distance of about 20 feet, there wasn't a single spike that clamped the rails down, by which I mean that the heads were not driven down close against the iron. On the outside of that rail only part of them...