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

• Decision Date: 31 December 1897
• Citation: 43 S.W. 1090
• Parties: MISSOURI, K. & T. RY. CO. OF TEXAS v. CHAMBERS.<SMALL><SUP>1</SUP></SMALL>
• Court: Texas Court of Appeals

43 S.W. 1090

MISSOURI, K. & T. RY. CO. OF TEXAS v. CHAMBERS.¹

Court of Civil Appeals of Texas.

December 31, 1897.

Appeal from district court, Grayson county; Don A. Bliss, Judge.

Action by T. M. Chambers against the Missouri, Kansas & Texas Railway Company of Texas to recover damages for personal injuries. Judgment for plaintiff. Defendant appeals. Affirmed.

T. S. Miller and Head, Dillard & Muse, for appellant. C. B. Randell and J. W. Finley, for appellee.

HUNTER, J.

This suit was filed June 30, 1896, by the appellee, to recover damages from appellant for personal injuries sustained by him on the night of June 17, 1896, while he was engaged in the performance of his duties as brakeman on one of appellant's freight trains. He alleged that while in the performance of his duty, using ordinary care for his own safety, he was injured by reason of the pulling out, giving way, and breaking of a hand hold in a ladder on one of the cars in one of defendant's trains at the city of Denton, Tex.; that said hand hold and its fastenings were old and worn and out of repair, and that by reason thereof they gave way, pulled out, and broke, and allowed him to fall, and he was thus seriously and permanently injured, and that, if the defendant had used ordinary care to furnish for his use cars, hand holds, and fastenings properly constructed, and in proper repair, and reasonably safe for use, the injury would not have occurred; that the unsafe condition of said car hand hold and fastenings was known to defendant, or by the use of ordinary care might have been known, and was not known to plaintiff. The defendant denied that the injury was caused by its negligence, or by any want of ordinary care, and alleged that, if there was any defect in said hand hold or its fastenings, it was latent,—that is, could not be discovered by the exercise of ordinary care; that said car belonged to a foreign line of railway, was loaded and sealed, and that, if there was any defect in the hand hold or its fastenings, it was not discoverable in the exercise of ordinary care, without unsealing the car and unloading it; that it was a general custom among railway companies, and of the defendant company, to receive foreign cars when loaded and sealed, without unsealing and unloading them, and that plaintiff knew or was chargeable with knowledge of this custom of defendant, and by remaining in defendant's employment assumed the risk of being injured by reason of any defect that might be in any such car which was not discoverable by the customary inspection made by defendant in such cases; that if defendant was mistaken as to the defects being latent or hidden, and if the same were open, then the same were patent to common observation, and plaintiff knew, or in the exercise of proper diligence might have known, of said defects, and if he failed to discover them he was guilty of contributory negligence, and hence ought not to recover. Our statute supplies a general denial to this answer. The cause was tried by a jury on the 20th day of March, 1897, and a verdict and judgment were rendered on that day in favor of plaintiff for $11,500, and to reverse which this appeal is prosecuted.

The record discloses, in substance, the following facts: The appellee was, on the night of June 17, 1896, in the employment of appellant as a brakeman on a freight train, which at 10:15 o'clock that night was running southward at Denton station, and as the train approached Denton, it having orders to lie by on a side track for a live-stock train to pass it, it became necessary for appellee, who was on top of the train in the discharge of his duties, to go to the forward end of the train, while in motion, running at the rate of 10 or 12 miles an hour, and get on the engine, so that when the switch stand was reached he could alight from the engine and throw the switch, and turn the train in upon the side track. In reaching the engine, it was necessary for him to descend from the top of the box car next to the engine, on a ladder composed of iron rounds screwed at each end to the right-hand side of the car, within two inches of the front end thereof. In descending on this ladder, and when his feet had about reached the bottom round, with his left hand holding to the second round from the top, he was swinging his right foot and hand to the rear end of the tender when the round of the ladder held in his left hand gave way, caused by the lag screw in the hind end pulling out, and the round at that end, parting from the side of the car, broke off the front end of the round, and appellee fell to the ground, and by the motion of the train was thrown against a switch stand, which struck him in the abdomen, and seriously and permanently injured him, rendering him unable to walk without a body brace and crutches, or even to sit up without assistance. He requires constant attention and nursing, and it is probable that his injuries will remain during his life, and seriously affect his ability to labor and earn a living.

The car from which he fell did not belong to appellant, but was the property of the Chicago, Milwaukee & St. Paul Railway Company, and was attached to this train at Denison, Tex., about 6:55 p. m. of that day, consigned to El Paso, Tex., via Ft. Worth. It was loaded and sealed, and had arrived at Denison from Kansas City, Mo., at 4:40 p. m. of that day. It remained in appellant's yards at Denison 2 hours and 15 minutes, and was inspected by appellant's car inspectors during that time. The evidence of appellant's witnesses, who were on duty as inspectors of cars at Denison that day, tends to prove that their custom is never to break the seals of loaded cars for the purpose of inspecting them inside, and that on this day the two inspectors—one on each side of the train in question—began at the engine, and walked back to the rear, viewing and looking around, over and under the cars, to see if everything was in proper and safe condition. Their evidence tends to establish that they would sometimes climb the cars, and go over them, testing the brakes and ladders, but on this day they were rushed, and did not go on top of or over this train. They viewed the brakes and brake rods from the ground, and in the same manner inspected the ladders. They found nothing wrong with the car in question, but did not climb its ladders, nor take hold of the rounds to see if any were loose. If they had found one loose, they would either have repaired it as it stood, or set out the car, and had it repaired before leaving Denison, because, they testified, it was dangerous to use a car when the rounds of the ladders are loose. They were short of help that day, and did not make as close an inspection as they sometimes did, though the general custom at Denison was to inspect cars by sight only, and not to climb the cars to make inspections. By climbing the ladders one could tell whether the rounds were loose, when the defect would not appear to the sight. They very often did not do this. They were shorter of men at that time than they had been. Sometimes they would fail to do any climbing, on account of being hurried with their work. In short, we find from the undisputed evidence of appellant's own witnesses, that this car was not inspected on the outside in an ordinarily careful, skillful manner, and, if it had been, the defective fastenings of this round in the ladder would have been, in all reasonable probability, discovered and repaired, and the injury would not have occurred. The appellee had not previously had occasion to use the car, and did not know of the defect. The defect consisted in the screw which held the hind end of the round of the ladder...