Missouri-Kansas-Texas R. Co. v. Evans

• Decision Date: 25 June 1952
• Docket Number: MISSOURI-KANSAS-TEXAS,No. A-3442,A-3442
• Citation: 250 S.W.2d 385,151 Tex. 340
• Parties: R. CO. v. EVANS.
• Court: Texas Supreme Court

Page 385

250 S.W.2d 385

151 Tex. 340

MISSOURI-KANSAS-TEXAS R. CO. v. EVANS.

No. A-3442.

Supreme Court of Texas.

June 25, 1952.

Rehearing Denied July 23, 1952.

G. H. Penland, Dallas, Freels & Elliott, Sherman, Nelson, Montgomery & Robertson, Wichita Falls, for petitioner.

Peery, Kouri & Wilson, Z. D. Allen, Wichita Falls, for respondent.

GRIFFIN, Justice.

Respondent was employed by petitioner as a brakeman and on November 24, 1949, was a member of a crew operating a freight train proceeding from Altus, Oklahoma to Wichita Falls, Texas. While enroute an airhose burst, causing the brakes to 'set', thus stopping the train. Respondent and another brakeman attempted with a wrench to disconnect the ruptured hose and replace it with a new one. The wrench would not turn the hose or its connection, and respondent then got under the coupling apparatus and beat upon the connection, with a hammer in an effort to loosen it. While so doing, he claims to have gotten rust and dirt in his left eye. Respondent testified that he then went to the engine and the other brakeman finished the job. His eye began to give him considerable pain and upon arrival at Wichita Falls, early in the afternoon, he called the doctor's office, but got no response. At home, his wife removed some rust and dirt from his eye. On the following day, he visited the offices of the doctors employed by the railway organization for treatment and in a day or so was admitted to the hospital.

Respondent as plaintiff in the trial court, filed his suit under the Federal Employers' Liability Act, Title 45, U.S.C.A. § 51, et seq., against the petitioner for damages for his injuries suffered by virtue of certain negligent acts of petitioner, and also for petitioner's violation of the Safety Appliance Act, Title 45, U.S.C.A. §§ 1-16. Upon submission of the case to a jury, a verdict was returned 'that the railroad company, (a) permitted rust to collect upon the airhose connection; (b) failed to inspect the airhose and its connection; (c) failed to inspect properly the power brake system; (d) permitted the hose to remain on its car while said hose was worn out; (e) maintained the airhose and connection in a negligent manner, and that all of the foregoing acts constituted negligence and were proximate causes of the injury respondent received to his eye. In addition respondent was absolved from any acts of contributory negligence. The damages were assessed in the sum of $40,000.' Upon such verdict judgment was given to respondent for $40,000 against the petitioner, Railroad Company. Motion for new trial was duly filed, amended and heard, and overruled by the trial court. This will be discussed later in the opinion. Upon appeal the Court of Civil Appeals at Fort Worth affirmed the judgment after requiring remittitur of $20,000. 243 S.W.2d 181.

Unquestionably petitioner was engaged in interstate commerce at the time respondent alleges he received his injury. Section 1 of Title 45, U.S.C.A. (otherwise known as the Safety Appliance Act) makes it unlawful for any common carrier engaged in interstate commerce to run any train in such traffic that has not a sufficient number of cars in it, equipped with power or train brakes, so that the engineer on the locomotive drawing such train can control its speed without requiring brakemen to use the common hand brake for that purpose. This covers air brakes as commonly used by railroads on their trains. This has been held to mean that the air brake must be maintained for use. Fairport, P. & E. R. Co. v. Meredith, 292 U.S. 589, 54 S.Ct. 826, 78 L.Ed. 1446; also that the statutory liability imposed by the Safety Appliance Act is not based upon the carrier's negligence but on an absolute duty and the carrier is not excused by any showing of care however assiduous. Brady v. Terminal R. Ass'n, 303 U.S. 10, 58 S.Ct. 426, 82 L.Ed. 614. The protection of the Safety Appliance Act has been held to extend to those inspecting cars. Idem. The statute 'has been liberally construed' so as to give a right of recovery for every injury, the proximate cause of which was a failure to comply with a requirement of the Act. Swinson v. Chicago, St. P., M. & O. R. Co., 294 U.S. 529, 55 S.Ct. 517, 79 L.Ed. 1041, 96 A.L.R. 1136; Carter v. Atlanta & St. A. B. R. Co., 338 U.S. 430, 70 S.Ct. 226, 94 L.Ed. 236, (5). In Davis v. Wolfe, 263 U.S. 239, 44 S.Ct. 64, 66, 68 L.Ed. 284, after reviewing the earlier cases, the court held that one can recover 'if the failure to comply with the requirements of the Act is a proximate cause of the accident, resulting in injury to him while in the discharge of his duty, although not engaged in an operation in which the safety appliances are specifically designed to furnish him protection.' It has been held that failure by a railroad company to use power brakes in operating trains in compliance with the requirements of the Federal Safety Appliance Act is an actionable breach of duty towards travelers driving automobiles upon highways, as well as toward railroad employees and passengers. Fairport, P. & E. R. Co. v. Meredith, supra.

Injuries received by railroad employees in repairing the brake system are within the protection of the Act. In the case of Coray v. Southern Pacific Co., 335 U.S. 520, 69 S.Ct. 275, 276, 93 L.Ed. 208, the Supreme Court of Utah, on appeal from a judgment dismissing plaintiff's suit, held 'that although the railroad ran its train with defective brakes it thereby 'violated no duty owing' to the decedent.' The Utah court said that the object of the Safety Appliance Act insofar as brakes are concerned is not to protect employees from standing, but from moving trains. In reversing the case and sending it back for further proceedings 'not inconsistent with this opinion' the Supreme Court of the United States said:

'We do not view the Act's purpose so narrowly. It commands railroads not to run trains with defective brakes. An abrupt or unexpected stop due to bad brakes might be equally dangerous to employees and others as a failure to stop a train because of bad brakes. And this Act, fairly interpreted, must be held to protect all who need protection from dangerous results due to maintenance or operation of congressionally prohibited defective appliances. Fairport, P. & E. R. Co. v. Meredith, 292 U.S. 589, 597, 54 S.Ct. 826, 929, 78 L.Ed. 1446, (1451, 35 N.C.C.A. 388). Liability of a railroad under the Safety Appliance Act for injuries inflicted as a result of the Act's violation follows from the unlawful use of prohibited defective equipment 'not from the position the employee may be in, or the work which he may be doing at the moment when he is injured.' Brady v. Terminal R. Ass'n, 303 U.S. 10, 16, 58 S.Ct. 426, 429, 430, 82 L.Ed. 614 (618); Louisville & N. R. Co. v. Layton, 243 U.S. 617, 621, 37 S.Ct. 456, 457, 61 L.Ed. 931 (933). In this case where undisputed evidence established that the train suddenly stopped because of defective air-brake appliances, petitioner was entitled to recover if this defective equipment was the sole or a contributory proximate cause of the decedent employee's death. Davis v. Wolfe, 263, U.S. 239, 243, 44 S.Ct. 64, 66, 68 L.Ed. 284 (287); Spokane & I. E. R. Co. v. Campbell, 241 U.S. 497 509, 510, 36 S.Ct. 683, 689, 60 L.Ed. 1125 (1135, 1136, 12 N.C.C.A. 1083).' (Emphasis added).

Further, Section 13 of Title 45, U.S.C.A. provides a penalty upon any railroad 'using, hauling, or permitting to be used or hauled on its line' any car subject to the requirements of the Safety Appliance Act with defective appliances, but further exempts a railroad from liability if the car has been properly equipped and the equipment becomes defective or insecure while being used by such carrier, and is being 'hauled from the place where such equipment was first discovered to be defective or insecure to the nearest available point where such car can be repaired, * * * if such movement is necessary to make such repairs and such repairs cannot be made except at such repair point. * * *' (Emphasis added.) Such language is clear and can have no other meaning than that the repairs must be made at the place of discovery if the defect can be so repaired. Chesapeake & O. Ry. Co. v. United States, 6 Cir., 249 F. 805, writ certiorari denied; Chesapeake & O. Ry. Co. v. United States, 4 Cir., 226 F. 683; Denver & R. G. R. Co. v. United States, 8 Cir., 249 F. 822; United States v. Chesapeake & O. Ry. Co., 4 Cir., 213 F. 748.

The evidence in the case at bar is uncontradicted that repairs could be made at the place the burst air hose coupling was discovered, and that it was the duty of the train crew, including respondent, Evans, to make or assist in making such repairs. A case directly in point, and which controls our action in the present case is Minneapolis, St. Paul, & Sault Ste. Marie Railway Company v. Goneau, 269 U.S. 406, 46 S.Ct. 129, 130, 70 L.Ed. 335. Goneau was the rear brakeman on a freight train being operated by the railroad company when the train, while en route between stations, broke in two. Upon the train stopping, Goneau went forward to ascertain the cause of the halt. He found the break between two cars, which had been stopped upon a narrow wooden bridge with open ties, and that the break resulted from a defective coupler on the rear and of the last car of the front part of the train. Upon discovering this defect Goneau 'as was his duty' undertook to get the train coupled up again so that it could proceed upon its journey. He put some 'shims' under a part of the coupler which had slipped out of place so as to raise up that part to interlock with the rest of the coupling device. Upon his signal the train was then coupled together and the train started on its journey, but, after proceeding only a few feet, again broke in two between the same cars on the same bridge. Finding the coupler in its former condition, he then attempted to make another coupling. To do this he again stood...