Missouri-Kansas-Texas R. Co. of Tex. v. Webb

Decision Date13 April 1950
Docket NumberMISSOURI-KANSAS-TEXAS,No. 2905,2905
Citation229 S.W.2d 204
PartiesR. CO. OF TEXAS v. WEBB.
CourtTexas Court of Appeals

O. O. Touchstone, Dallas, G. H. Penland, Dallas, Freels & Elliott, Sherman, for appellant.

King, Jacobs & Davis, Houston, Harry E. Kain, Denison, for appellee.

HALE, Justice.

Appellee brought this suit against appellant under the Federal Employers' Liability Act, 45 U.S.C.A. § 51 et seq., for the recovery of damages on account of personal injuries sustained by him when a passenger train on which he was the locomotive engineer collided with the rear end of a freight train. The case was tried before a jury. Upon the conclusion of the evidence appellant presented its motion for a peremptory instruction which was overruled. The case was then submitted to the jury on 94 special issues. In response to such issues the jury found that certain specific acts of appellant's employees each constituted negligence and a proximate cause of the injuries sustained by appellee; that certain specific acts of appellee each constituted negligence on his part and a proximate cause but not the sole proximate cause of his injuries; that $63,653.53 was the amount of money which, if paid then in cash, would reasonably compensate appellee for his injuries and for hospital and doctor bills incurred by him as a result thereof; and that $26,640.00 was the amount by which appellee's compensatory damages should be diminished on account of his negligence, taking into consideration the extent to which his negligence contributed to the total amount of found damages. Thereupon, the court entered judgment awarding a recovery to appellee against appellant in the sum of $37,013.53. In due time appellant filed and presented its motion for a new trial which was overruled and perfected its appeal with the result that the cause is now properly pending in this court for review.

By its first point appellant says the court below erred in refusing to grant its motion for an instructed verdict. It contends, as we understand its brief, that the imputable negligence, if any, of its employees in relation to the collision was and is immaterial and insufficient as a matter of law to authorize any recovery on behalf of appellee because the undisputed evidence shows that such negligent conduct, if any, grew out of the breach of duties on the part of its employees which were secondary and incidental to the primary, direct and personal duties which appellee as engineer owed for the safety of himself and others in the movement of his locomotive and since the undisputed evidence further shows that appellee's injuries were proximately caused by his own negligence in breaching the primary duties which he owed to heed warning signals of danger in the movement of his locomotive, he is not entitled to any recovery herein, notwithstanding the provisions of the Federal Employers' Liability Act under which the asserted cause of action arose.

Appellee was engineer on appellant's fast passenger train No. 7, known as the 'Bluebonnet', running south from Denison towards Dallas when on November 10, 1947, at about 7:30 o'clock A.M. his train struck the rear end of appellant's freight train No. 271 a short distance north of the town of Leonard. Appellant's main line is a single track extending south from Denison through the towns of Penlan, Bells, Whitewright, Trenton and Leonard to Greenville and thence to Dallas. Train No. 271 was regularly scheduled third-class freight train due to depart from Denison at 3:00 o'clock A.M. but on the morning of the collision it actually departed from Denison at 5:40 A.M. and No. 7, scheduled to depart from Denison at 6:20 A.M., actually departed at 6:44. Appellant's train dispatcher issued what are known as wait orders whereby No. 7 was required to wait at Bells until 6:58 and at Whitewright until 7:06, which was later changed to 7:11, but there was evidence to the effect that the dispatcher did not advise appellee that No. 271 was running immediately ahead of No. 7. Having passed through Bells at 6:43, it was the intention of the conductor on No. 271 to enter the passing track at Whitewright for the purpose of letting No. 7 go ahead. With that object in view the rear brakeman on No. 271 testified that in order to protect his train and to give warning to No. 7 he lighted and dropped a ten minute red fusee on the main line track at a point about 2 1/2 miles south of Bells and again about 1.3 miles north of Whitewright and he placed two torpedoes on the west main line rail, two rail lengths apart, at a point north of the passing track in Whitewright.

When train No. 271 arrived at Whitewright about 7:02 its crew found that an unscheduled, extra, third-class freight train, No. 884, running north from Dallas to Denison, was in the passing track and thereupon the conductor of No. 271 decided to proceed on to Leonard, a distance of 14 miles from Whitewright, and there enter a passing track for the purpose of permitting No. 7 to go ahead. The rear brakeman testified that after he had placed the two torpedoes upon the main line rail north of the passing track in Whitewright he ran back to the depot and when No. 7 showed up in the distance he straddled the main line rail on the engineer's side, lighted a red fusee and began swinging the red fusee and his red lantern in a horizontal arch; that it was his intention thereby to stop No. 7 and board the same for the purpose of advising appellee as to the location and intended movements of No. 271; that appellee answered his stop signal with two short blasts of the whistle and began to slow down but did not stop; that he attempted to board No. 7 as it passed in order to advise appellee of the location and intended movements of No. 271 and, although unsuccessful in his first attempt to board the train, he succeeded in a second attempt; that he immediately found the brakeman on No. 7 and informed him of the location and movements of No. 271 and was advised by the brakeman to see the conductor; that in his efforts to locate the conductor he found the porter on No. 7, advising him of the situation and finally he contacted the conductor and 'I told him the way he was running and with the train he's got, he is going to hit us as sure as the world before we get there'; and that the conductor told the porter to stop No. 7 at Leonard and let the witness off of No. 7.

Appellee testified that he heard the torpedoes explode as he was approaching Whitewright and that he saw the brakeman from No. 271 signaling him to stop but that the brakeman then gave a come on easy signal with his fusee, threw the fusee down and then gave a 'saw' signal by rubbing the palms of his hands together and that he did not observe any other warning signal of any kind until he was too close to No. 271 to stop his train without a collision. There was evidence to the effect that No. 271 was 43 cars in length; that there was a passing track at Penlan capable of holding 80 cars, one at Bells capable of holding 53 cars and one at Trenton capable of holding 38 cars, none of these tracks being in use on the morning of the collision, and that No. 271 could have made a 'saw' in the passing track at Trenton and thereby permit No. 7 to go ahead. There was also evidence to the effect that conditions of visibility were poor by reason of a heavy fog at and prior to the time of the collision.

In passing upon appellant's asserted right to an instructed verdict, this court must view the evidence as a whole and all reasonable inferences and deductions that may properly be drawn therefrom in the light most favorable to the contentions of appellee. Upon due consideration of all the voluminous evidence before us, we cannot say as a matter of law that appellee's injuries were not proximately caused by any negligence on the part of any of its employees or that the negligence of appellee was the sole proximate cause of his injuries. On the contrary, it appears to us that the evidence in its entirety was sufficient to authorize the jury to find, as it did, (1) that the act of appellant's employees in running No. 271 less than ten minutes ahead of No. 7 from Whitewright to Leonard, and (2) that the failure (a) of appellant's train dispatcher to advise appellee that No. 271 was running ahead of him, (b) of appellant's conductor on No. 271 to order his train into a siding or passing track between Denison and Leonard, (c) of the crew on No. 271 to throw off any lighted fusees between Trenton and the point of the collision, and (d) of the conductor, brakeman and porter on No. 7 to stop their train before the collision, constituted negligence and that such negligence was in each particular a proximate cause of the collision and its resulting injuries and damages.

The Federal Employers' Liability Act, 45 U.S.C.A. §§ 51-60, as originally enacted by the Congress on April 22, 1908, provides in Section 51 thereof that every common carrier by railroad while engaging in interstate commerce shall be liable in damages to any person suffering injury while employed in such commerce for such injury resulting in whole or in part from the negligence of any of the employees of such carrier. The Act in Sec. 53 thereof expressly abolished the common-law defense of contributory negligence as a complete bar to the right of an injured employee to recover damages on account of injuries proximately caused by the negligence of his employer but provided that in the event the employee was guilty of contributory negligence his compensatory damages should be diminished by the jury in proportion to the amount of negligence attributable to such employee. The Act also provided in Sec. 54 that the injured employee should not be held to have assumed the risks of his employment in any action where the violation by such common carrier of any statute enacted for the safety of the employees contributed to the injury of such...

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