Missouri-Kansas-Texas R. Co. of Tex. v. Bruton, MISSOURI-KANSAS-TEXAS
| Decision Date | 26 April 1956 |
| Docket Number | No. 12920,MISSOURI-KANSAS-TEXAS,12920 |
| Citation | 290 S.W.2d 282 |
| Parties | RAILROAD COMPANY OF TEXAS, Appellant, v. Jesse BRUTON, Appellee. |
| Court | Texas Court of Appeals |
G. H. Penland, Dallas, Vinson, Elkins, Weems & Searls and C. E. Bryson and Ben H. Rice, III, Houston, for appellant.
Bonham, Stanley & Campbell, Helm, Jones, McDermott & Pletcher, and Albert P. Jones and Raymond L. McDermott, Houston, for appellee.
Suit under the Federal Employers' Liability Act, 45 U.S.C.A. § 51 et seq., by Jesse Bruton against Missouri-Kansas-Texas Railroad Company of Texas, his employer, to recover for personal injuries sustained on October 30, 1952, when a railroad motor car operated by Bruton, a section foreman, along a passing track on defendant's line near the Katy, Texas, depot in Harris County, Texas, ran into an open switch which was set closed to the passing track and open to a connecting rice mill industrial track.
Trial to a jury on special issues under the comparative negligence doctrine obtaining in actions under the Federal Act resulted in findings establishing primary and contributory negligence, damages of $33,000, and that plaintiff's negligence contributed to the accident 45%, compared to 55% caused by that of defendant. Judgment for plaintiff in the amount of $18,321.10 with interest and costs followed.
Defendant appeals, assigning by properly preserved points of error the want of any proof to show facts from which there could legitimately be inferred any breach of duty by defendant to plaintiff and that the record conclusively establishes plaintiff's own negligence as the sole proximate cause of his injuries. Other points of error go to procedural matters.
The issues may not be understood without a somewhat detailed outline of the facts. A plat of the area at the place of the accident was introduced in evidence. This makes the movements of the motor car and of the switching operation involved easy to follow, however because of the size of the plat it is impracticable to reproduce it in this opinion. We will, therefore, do out best to describe the salient facts.
All tracks involved run east and west. On the day of the accident defendant's local freight train No. 95 arrived at Katy from the west, destined for Houston. The train stopped on the main line track at some point west of the Katy, Texas, depot. The work to be done at Katy, Texas, consisted of coupling up some 15 cars, then spotted on the rice mill track, and then switching these cars through a certain passing track and onto the main line and attaching them to the body of the train where it stood on the main line track west of the depot. There are three principal tracks at Katy, namely the main line track, a lengthy passing track, and a less lengthy rice mill industry track. The three tracks are connected to each other by switches. All run east and west. The passing track lies to the north of and alongside the main track. The rice mill track in turn lies to the north of and alongside the passing track. The rice mill track is connected to the passing track by two switches only. These are described in the evidence by their geographical location as the west switch and the east They are the only switches necessary to note in connection with the accident.
On the day of the accident Bruton and his section crew, consisting of Guzman, Collins and Simpson, had taken the motor car out of the tool house south of the main line track near the depot. They had been over Bruton's section from Mile Post 1056 to Mile Post 1066 and had returned to a point near the rice mill dryer. This is located a short distance from and to the north of the rice mill track. Collins and Simpson were engaged in picking up trash which had been kicked out by the dryer. The motor car had come into the area from the east on the passing track so as to be nearer the trash to be picked up. While Collins and Simpson were picking up trash, Bruton and Guzman were seated on the motor car, which had been stopped on the passing track opposite the rice dryer. Bruton observed the detached engine of Local 95 approaching him from the west on the passing track. Had Bruton left the motor car stationary, the engine proceeding from the west in an easterly direction on the passing track would have overtaken the motor car. Bruton knew from past experience that the engine was to do switching work on the rice mill track. Therefore, he and Guzman retreated with the motor car ahead of the approaching engine and well past the east switch to the rice mill track. The engine came ahead and also proceeded past and clear of the east switch connecting the passing track to the rice mill industrial track preparatory to going into the rice mill track through the east switch. However, it is important to note that as the engine passed the west switch Brakeman Thorne, who was riding the rear of the engine, dropped off at that point and immediately lined the west switch for the rice mill track and against the passing track. This was unknown to Bruton, nor was it suspected by him. There is proof from defendant's evidence that 99 times in 100 all switching by Local 95 to and from the rice mill track was done through the east switch. This is because 99 times in 100 only a portion of the cars on the mill track are loaded and ready to go out on the local train and it is impracticable in such circumstances to use the west switch, in separating the cars to go from those to remain and attaching them to the train. However, on October 30, 1952, all 15 cars on the mill track were to go out and be attached to the train and it was decided by the train crew member in charge to back the engine into the mill track through the east switch, then couple all the cars and back-shove the entire cut through the west switch onto the passing track and westward thereon and through a connecting switch to the main line as a means of attaching the cut to the main body of the train. It was in anticipation of this unusual movement that Thorne dropped off of the engine as it passed the west switch while proceeding eastward on the passing track to the east switch. It was a convenience of Thorne and a timesaver for the crew to open the west switch when Thorne opened it. The cars to be coupled on the rice mill track were some distance to the east of the west switch. Thorne was to participate in the work of coupling these cars. Had he waited to open the switch until the cars on the rice mill track were coupled and attached to the engine and the movement of the cars through the switch was ready to be made, there would have been a delay while Thorne was walking back to the west switch-stand from his position at the cars, or had he ridden the cut down to the west switch there would have been a delay while he dropped off to open the switch and the cut of cars would have had to be stopped preparatory to making the movement through the switch.
Defendant's Operating Rule 104 governing the alignment of switches is as follows:
When the engine stopped on the passing track clear of the east switch to the rice mill track preparatory to going into the rice mill track, Brakeman Richey got off the engine and lined the east switch for the engine to go into the rice mill track. Immediately upon so lining this switch, Brakeman Richey proceeded to the cars on the rice mill track. After the engine backed through the east switch onto the rice mill track, Fireman Yancey got off the engine and relined the east switch for the passing track and threw the derail to prevent the engine from coming back onto the passing track. Fireman Yancey agreed to do this in the interest of time so as to permit Brakeman Richey to get on with the work.
While the foregoing engine movement was being made, Bruton at all times kept the motor car on the passing track, a safe distance to the east of the engine. But when the engine stopped east of the east switch, Bruton stopped the motor car. After the engine got on the rice mill track and after Fireman Yancey relined the east switch for the passing track, Bruton came back on the motor car along the passing track and past the east switch to the rice mill track to the point where he had left Collins and Simpson picking up trash north of the passing track near the rice dryer. It was about quitting time. The work of picking up the trash had been completed and Collins and Simpson got back on the motor car. The entire section crew, Bruton, Guzman, Collins and Simpson, then commenced to proceed west on the motor car, intending to place it in the tool house and knock off work. When the motor car, which was then being operated by Bruton, reached the west switch, a derailment accident occurred. This was obviously because Bruton was not aware that the west switch was set closed to the passing track.
It is to be noted that as Bruton came back westward on the passing track from a point east of the east switch to pick up his men, Mr. Birdwell The head brakeman, flagged him down to inquire if Bruton had left the east switch lined for the passing track Birdwell was then standing north of, but near, the passing track at a point between the east switch and the palce where...
To continue reading
Request your trial