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

• Decision Date: 05 June 1915
• Docket Number: (No. 801.)<SMALL><SUP>†</SUP></SMALL&gt
• Parties: MISSOURI, K. & T. RY. CO. OF TEXAS v. ROBESON.
• Court: Texas Court of Appeals

178 S.W. 862

MISSOURI, K. & T. RY. CO. OF TEXAS v. ROBESON.

(No. 801.)^†

Court of Civil Appeals of Texas. Amarillo.

June 5, 1915.

Rehearing Denied July 3, 1915.

Appeal from District Court, Cooke County; C. F. Spencer, Judge.

Action by A. G. Robeson against the Missouri, Kansas & Texas Railway Company of Texas. Judgment for plaintiff, and defendant appeals. Affirmed.

Chas. C. Huff, of Dallas, and Garnett & Garnett, of Gainesville, for appellant. Stuart, Bell & Moore, of Gainesville, for appellee.

HALL, J.

Appellee, who had been in appellant's employ for many years, was section foreman in charge of the Whitesboro section, on appellant's line of road, including the yards and all the tracks at that station. On May 27, 1913, while on a hand car, in charge of five Mexicans, as section hands, returning from work, and while the car was being propelled by the section hands, at or near a road crossing in Whitesboro, appellee fell from the car and was injured. He alleges, in substance, that appellant's agents and servants negligently caused said car to check or slow up suddenly without any warning to him, thereby causing him to be thrown in front of said car while moving on the track, and before said car could be stopped it ran onto and over appellee, causing his injuries.

Appellant's answer denies the acts of negligence, and pleaded, in substance, that at the time of appellee's injury he was engaged with defendant in interstate commerce, and that his injuries, if any, were caused by one of the ordinary dangers and risks incident to his employment; that as section foreman he had charge of all the tracks at Whitesboro, and it was his duty to keep them in repair; that while riding on the hand car it was also his duty to inspect the track ahead and see that it was clear of all obstructions; that upon the occasion in question some one, without appellant's knowledge or consent, had deposited some cinders on appellant's track at the place of the accident; and that appellee negligently caused and permitted said hand car to be run on said cinders, thereby jostling and throwing him from the car, causing his injuries.

Appellant requested the court to direct a verdict because of the insufficiency of the evidence to show negligence on the part of defendant or its employés. Appellee testified, among other things, that he was an experienced section man and qualified as an expert to testify as to the operation of a hand car and its movements; that he had been section foreman, engaged in track work for the last 20 years, and knew what his duties were; that he could tell whether the injury was caused from the car running over some obstruction on the track or whether it was caused by the stopping of the car by the men on it; that, in running over dirt or any obstruction on the track, the car quivers, and, if it is dirt or cinders, it would check the car, but not so suddenly; that the stop in this case was just a check, and then the car went right on; that a hand car can be checked that way by a brake, by one of the section hands happening to throw his foot on the brake suddenly in some way, or by one of the hands who is pumping the car dropping his weight on the lever and holding it down, or by pumping with stiff arms; that he had seen section men accidentally step on brakes and check cars in that way several times, and had seen men thrown off the car in that way. Holding down on the levers too long or pumping with stiff arms checks the speed of cars in a manner that he had noticed all the way along through his railroading. His explanation of how the accident occurred is as follows:

"At the time I claim to have been injured, the car checked, and it throwed me in front of it and rolled me up under it. The Mexicans were handling the car at the time. I don't know who did stop the car. There was nothing on the track that I seen, and I had been looking forward on the track. I did not see anything on the track. I had been over the track and inspected it. Yes, as I was going towards the crossing I was looking at the track. I did not see anything on it. Yes, the Mexicans were...