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

• Decision Date: 30 April 1910
• Citation: 128 S.W. 711
• Parties: MISSOURI, K. & T. RY. CO. OF TEXAS v. ROGERS.<SMALL><SUP>†</SUP></SMALL>
• Court: Texas Court of Appeals

128 S.W. 711

MISSOURI, K. & T. RY. CO. OF TEXAS v. ROGERS.^†

Court of Civil Appeals of Texas.

April 30, 1910.

Rehearing Denied May 21, 1910.

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

Action by James N. Rogers against the Missouri, Kansas & Texas Railway Company of Texas. Judgment for plaintiff, and defendant appeals. Affirmed.

See, also, 117 S. W. 914.

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

BOOKHOUT, J.

On the 18th day of July, 1907, appellee instituted this suit against appellant for damages in the sum of $30,000 for personal injuries alleged to have been received by him at Wagoner in the Indian Territory, on the 26th day of December; 1906, while in the employ of appellant as a brakeman. It was alleged that appellee was on a freight train approaching the station of Wagoner when he discovered a hot box on his train; that it was his duty to cool the same; that in the performance of his duty he filled a bucket with water and stepped off of the engine while it was moving onto appellant's platform at Wagoner and waited until the car with the hot box reached him; and that he ran along by the side of the train, in the direction it was going, attempting to cool the hot box, on the platform, which was made of cinders, and said platform crumbled and gave way, causing him to fall under the train, which so mashed his left foot as to render necessary the amputation of the same. He alleged the negligence of appellant to be in the construction and maintenance of this cinder platform. A trial resulted in a verdict and judgment for plaintiff, and, defendant's motion for new trial having been overruled, it perfected an appeal.

It is contended in the first assignment that the trial court erred in refusing appellant's requested charge instructing a verdict for defendant. The proposition presented is that, in a suit by a servant against his master for damages for injuries received in the course of his employment, it is incumbent upon him to prove the negligence of the master, and in the absence of such proof the cause should not be submitted to a jury, and that in such a suit the doctrine of res ipsa loquitur does not apply. It is true that, in a suit in the Indian Territory by a servant for damages arising from injuries caused by the negligence of the master, the plaintiff must prove the negligence, and negligence will not be inferred from proof alone of the accident and injury. Such is the holding of the Supreme Court of the United States, the decisions of which court control in determining the common law in the Indian Territory. Patton v. Railway, 179 U. S. 658, 21 Sup. Ct. 275, 45 L. Ed. 361; Railway v. Wise, 101 Tex. 459, 109 S. W. 112. But we are of the opinion that the evidence did show negligence on the part of the appellant in the construction of the cinder platform and also in permitting it to remain in a defective condition after it was constructed. The platform at Wagoner is on the west side of the depot. About 250 feet of the northern portion of the platform is of wood and about 314 feet of the southern portion is of cinders. The cinder platform is of a uniform height of six inches, except where it slopes down to the end of the rails. There were no boards or planks or retaining wall of any kind around it. If the slope was sufficient, it would not slough off when weight was applied to the top, and no retaining walls would be necessary. The proper slope of a cinder platform 6 inches high is from 16 to 18 inches. If it only has a 6 or 8 inch slope, it is insufficient. There was evidence that the cinder platform next to the rail had a slope of only 6 or 8 inches, and that its edge along the rails had sloughed or frayed off. The evidence shows that as the train on which appellee was a brakeman approached Wagoner the morning of the accident he discovered a hot box on one of the cars of the train. He was riding on the engine at the time, and the car which had the hot box was about five cars back from the engine. He took a bucket of water and got down from the engine and went along with the train, holding the edge of the bucket with his left hand and the bail in his right and poured water on the hot box. After proceeding about 25 feet on the cinder platform, the edge of the platform broke or sloughed off and caused him to stumble and fall under the train. It was necessary to cool the hot box in order to reduce its temperature and keep it from burning the brasses out and getting hot enough to possibly break the journal. The danger grows greater the longer a train with a hot box is operated. There was evidence that the best way to cool a hot box is to put water on it while the train is moving and the wheel is revolving. The train was running about 6 or 8 miles per hour. At the time appellee received his injuries, he did not know of the defective condition of the cinder platform.

We conclude there was no error in refusing a peremptory instruction for defendant.

Error is assigned to the fourth paragraph of the court's charge, reading as follows: "If you believe from the evidence that on the occasion in question, as the train upon which plaintiff was working approached Wagoner, there was a hot box on said train; and if you further believe from the evidence that it was plaintiff's duty to cool same, and that when said train reached the station of Wagoner plaintiff got off of the train on the platform by the depot with a bucket of water, and that while the train was running he moved along said platform in the direction the train was going for the purpose of pouring water on said hot box; and if you further believe from the evidence that while plaintiff was so doing, if you find he was so engaged, after he got on the cinder platform it sloughed off or caved in at the edge and caused plaintiff to fall and his foot and leg to get under the wheel or wheels of one of the cars of said train, and that he was thereby injured; and if you further believe from the evidence that said cinder platform, constructed as you find from the evidence it was constructed, was not reasonably safe and was dangerous for defendant's employés to use in the performance of their work in operating trains at said point; and if you further believe from the evidence that in constructing and maintaining said cinder platform, as you find and believe from the evidence it was constructed and maintained, 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 plaintiff's injury—you will find for plaintiff and assess his damages under instructions hereinafter given you unless you find for defendant under other instructions given you in charge by the court."

Three propositions are presented under this assignment. In the first it is insisted that this charge was erroneous because the evidence fails to show any negligence on the part of the railway company in the construction of the cinder platform, and that negligence in the construction of the platform should not have been submitted to the jury. The second is that the evidence fails to show any negligence on the part of the railway company in maintaining the cinder platform, and that negligence as to the maintaining of the platform should not have been submitted to the jury. In the third it is insisted that the court erred in instructing the jury to find for appellee if "said cinder platform constructed, as you find from the evidence it was constructed, was not reasonably safe and was dangerous for defendant's employés to use in the performance of their work in operating trains at said point"; if appellee was negligent "in constructing and maintaining said cinder platform, as you find and believe from the evidence it was constructed and maintained." The court should have defined the kind of construction and maintenance that would give a cause of action and have confined the jury to that kind of construction and maintenance. These propositions are not sustained. The charge was correct.

There was evidence showing that the cinder platform was negligently constructed. The expression, ...