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

• Decision Date: 05 March 1919
• Docket Number: (No. 47-2711.)
• Citation: 209 S.W. 399
• Parties: MISSOURI, K. & T. RY. CO. OF TEXAS v. GRAHAM.
• Court: Texas Supreme Court

209 S.W. 399

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

(No. 47-2711.)

Commission of Appeals of Texas, Section B.

March 5, 1919.

Error to Court of Civil Appeals of Fifth Supreme Judicial District.

Action by Sam Graham against the Missouri, Kansas & Texas Railway Company of Texas. Judgment for plaintiff, and defendant appeals, and from a judgment of affirmance by the Court of Civil Appeals (168 S. W. 55), the defendant brings error. Judgments of Court of Civil Appeals and of district court reversed, and judgment rendered for defendant.

C. C. Huff, of Dallas, W. R. Abernathy and Wallace Hughston, both of McKinney, and A. H. McKnight, of Dallas, for plaintiff in error.

R. C. Merritt and H. C. Miller, both of McKinney, for defendant in error.

SADLER, J.

For a statement of the pleadings in this cause reference is had to the opinion by the Court of Civil Appeals. 168 S. W. 55. The facts on the question of negligence vel non are as follows:

At the time of the alleged injuries for which recovery is sought Graham was the freight and passenger agent of the defendant at McKinney, Tex., and had been such for several years. His duties as such agent were performed at the passenger and freight depots.

It seems that the track of the defendant at this place runs north and south. The passenger station is located on the west side of the track, while the freight station is on the east side. It was Graham's duty to look after the sale of tickets at the passenger depot, to perform his duties with reference to freight matters at the freight office which was situated near the south end of the freight station, and to attend generally to the business of defendant at this station. His duties required that he pass backward and forward from one to the other of these offices.

Surrounding the freighthouse proper was a platform extending out north, south, east, and west from the building, forming a place upon which to receive and from which to deliver freight. This platform was approximately 100 feet long north and south by 40 feet wide east and west. Along its western side, the platform was about 3 feet above the ground. Along the northern end, it was from 3 to 4½ or 5 feet higher than the ground, being about 3 feet above the ground at the western end and about 4½ or 5 feet at the eastern end. Along the east side, it was from 4½ to 5 feet above the ground. Defendant's passing track ran along the west side of the freight platform. When freight trains were standing on this track, there was a very narrow space between the cars and the edge of the platform, rendering it inconvenient to pass between the cars and the platform. At the northwest corner of the freight platform, there had been for several years steps, which were used in passing from the freight over to the passenger station and vice versa. At the southwest corner of the freight platform, there were steps used in passing to and from the freighthouse. The most convenient route of travel from the passenger over to the freight station and return — the one used commonly by Graham — was by way of the steps at the northwest corner of the freight station.

Graham received his injuries on Monday. During the preceding week the defendant was engaged in rebuilding and repairing a sewer which extended along the north end of the freight platform. This sewer was being dug about 4½ feet deep and about 4 feet wide. The bottom was being covered with cement. Graham knew that this work was being done.

While digging this trench along the north side of the platform the foreman in charge of the work caused a banister or railing to be placed along the north end of the freight platform as a warning to prevent parties from walking off into the ditch. This consisted of three uprights about 3½ feet long, either 1 by 4, or 2 by 4, on top of which was nailed a railing of 1 by 4 or 2 by 4. These standards or uprights were not braced, but were toenailed to the floor of the platform with sixpenny nails. It was a temporary structure to prevent parties from walking off. This railing extended within about 3 or 3½ feet of the northwest corner of the freight platform. The rules of the company prohibited any obstruction on platform nearer than 3½ or 4 feet of the west edge to prevent injury to trainmen hanging on the side of box cars in freight trains passing this platform, requiring this for protection of employés.

On Saturday, the steps at the northwest corner of the platform were removed, and the sewer or ditch dug at this point. At this place, the south edge of the ditch ran about 12 inches under the edge of the platform. After digging the ditch on Saturday, a mixing board, 16 by 9, was placed at the edge of the ditch on the north side about the point from which the steps had been removed. This board extended to the edge of the ditch, was resting upon a secure foundation, and was used to mix the cement and gravel with which the ditch was floored. The cement was put into the ditch Saturday. The south edge of this board was 2½ or 3 feet north and 2 or 2½ feet lower than the top edge of the platform. The ditch was open between the edge of the mixing board and the platform. Graham knew on Saturday that the steps had been removed; that the ditch had been dug; that the mixing board had been placed there in order to prepare the cement for flooring the ditch; and that the cement had been placed in the bottom of the ditch.

After removing these steps there were the following safe ways by which Graham could pass from one depot to the other: One by way of the steps at the southwest corner of the freight platform; another by going to the northeast corner and climbing up on the east side; and when no cars were standing on the passing track along the west side of the platform, he could get on the platform anywhere along the west side.

On the morning of the injury, Graham had been in the passenger depot, selling tickets for the outgoing passenger train. After he had completed this work, he then started over to the freight office. At this time there was a freight train standing on the passing track ready to depart. It appears from the evidence that this train extended the entire length of the platform, and perhaps on south of the south end. Graham came out of the passenger depot at the east door, crossed the tracks, and attempted to get up on the freight platform at the northwest corner by stepping from the mixing board to the platform. In doing this, he stood on the edge of the mixing board with his left foot and placed his right foot on the edge of the platform, then took hold of the top of the railing and undertook to step up on the platform. The railing gave way, and he fell into the ditch, receiving the injuries for which he seeks recovery.

As station agent for the defendant Graham had the direction of the business of the company at McKinney, was in charge of the freight and passenger depots, and familiar with the situation of all of the premises. He knew the work that was being done in digging this sewer and repairing same. It was open and apparent that the railing along the north end of the platform was a temporary structure without any braces.

In order to pass from the passenger depot to the freight depot on the morning of the injury, Graham could have gone the course traveled by him and got up on the platform at the northwest corner; or have gone to the northeast corner and climbed up on the east side of the platform; or continued south to the southeast corner of the platform, west to the steps at the southwest corner and ascended by these steps, then across the platform about 20 feet to the office; or he could have gone south from the passenger station, passing around the south end of the freight train, and ascended the steps at the southwest corner. The course pursued by him was the shortest route from the passenger office to the freight office. It was rendered unfit for use by reason of the repair. To have gone by the way of the northeast corner of the platform, passing completely around the freight depot and using the steps at the southwest corner, would have required him to travel in the neighborhood of 110 or 115 feet further than to have gone the route selected by him. To have gone around the south end of the freight train would have necessitated about the same additional distance of travel. Either of these routes would have afforded him a safe way. Both were known to him. He could have selected either of these routes instead of taking the one he did.

He charges the defendant with negligence in the following particulars: (a) In removing the steps which he had been using and failing to replace them or other steps at the northwest corner of the platform; (b) in failing to furnish him a reasonably safe way and means to get up on the platform in going from the passenger station to the freight depot; (c) in failing to cover the ditch or sluiceway and providing proper means to prevent any one from falling or stepping into same; and (d) in failing to provide a safe railing or other object by which he could pull himself up on the platform. He charges that each of the above acts of negligence was the direct and proximate cause of his injury.

Defendant in the Court of Civil Appeals urged many errors in the trial of the cause, among others that the evidence wholly failed to show liability on the part of the company in that no negligence was proved.

The Court of Civil Appeals having held against the company on all of its assignments, the cause is before us on writ of error.

Opinion.

Many errors of which complaint is made by the defendant in error become immaterial in the view which we have of this case. We are not unmindful of the fact that, in the opinion of the honorable Court of Civil Appeals, the trial judge, and the jury, the evidence was deemed sufficient to establish negligence on the part of the defendant proximately bringing about plaintiff's injuries. We are loath to take a position contra...