Missouri Pac. Ry. Co. v. Lehmberg

• Decision Date: 08 November 1889
• Citation: 12 S.W. 838
• Parties: MISSOURI PAC. RY. CO. <I>v.</I> LEHMBERG.
• Court: Texas Supreme Court

12 S.W. 838

MISSOURI PAC. RY. CO.v.

LEHMBERG.

Supreme Court of Texas.

November 8, 1889.

Appeal from district court, Tarrant county; CHARLES J. EVANS, Special Judge.

Finch & Thompson, for appellant. Ball, Wynne & McCark, for appellee.

HENRY, J.

This suit was brought by Pauline Lehmberg, for the benefit of herself and the two minor children of herself and her husband, Gustave Lehmberg, for damages growing out of the death of the husband and father while in the employment of defendant. The petition charges that the said Gustave Lehmberg was engaged in repairing defendant's railroad track in the city of Fort Worth, and that while he was so engaged, without fault on his part, he was run over and killed by one of defendant's engines. The petition alleges that the death was caused by a switch-engine which was unfit and dangerous to persons working in the said yard; and that its defects were well known to defendant, but unknown to deceased. Defendant pleaded contributory negligence, and negligence of fellow-servants. There was a verdict for plaintiffs for $10,000 divided between them equally, upon which judgment was rendered.

The evidence shows that the deceased was working with a shovel in repairing the Y of the defendant railroad, in its yard in the city of Fort Worth. Some other hands were engaged in the same work, one only of them very near him. His death was caused by an engine then being used in the yard for switching purposes. It was a road engine, and had been brought into the yard not long before. It had a square tank. The evidence shows that when an engine with such a tank is backing, if the engineer controlling it is 40 or 50 feet from a man on the track, he can see him; but, within 10, 20, or 30 feet, he cannot see him, if the engineer is standing on his engine. The statement of facts shows that as a general thing engines with sloping tanks are used for switching purposes by railroads. The object of having a sloping tank is to give the engineer a better view of the track, and of the men that are working with the engine on the track. A sloping tank is one that slopes from the front part of the tank, and comes to a sharp point at the end furthest from the engine. A man on one of them can see another man who is standing on the ground until the tender is right up to him. The engine was backing when it came in collision with the deceased. An employe of the railroad company was standing on a foot-board on the rear end of the engine, but which was in front, as the engine was then going. He was placed there for the purpose of giving warning to people who were on the track, and to give to the engineer proper signals for his guidance. He could not, from his position on the engine that was being used, see the engineer, or give him signals; and, in order to do that, he had to move to one side of the engine, and lean out. As the engine went on to the Y where the injury occurred, the whistle was blown and the bell was ringing. The engineer, a witness for defendant, testified: "When I got within about forty feet of the Front-Street crossing, I noticed a man working by himself, about fifteen feet north side of Front street, smoothing off the track. When I noticed him he was looking right at me. I paid no further attention to him. I got on the crossing then, and got a signal from the section foreman on the bridge to slow up; that it (the bridge) was not ready for us to go over yet. I reversed my engine, and was nearly stopped, right on the crossing. I reversed her again, to let her roll up a little closer to the bridge; and we rolled probably fifteen or twenty feet. The switchman jumped off behind, and hollered me to stop, to slack ahead. I reversed my engine again, thought there was something wrong and pulled her open. We went ahead a car-length before I got her stopped. I looked back on the rail, and saw the hind truck wheel run on a man. A man cannot stand up in an engine of that particular kind, and handle her, and see a man on the track, say twenty feet from the hind end of the tank, because it is too high. The regular switch-engine tank is sloping. This was the regular switch-engine of the T. & P. It would not be considered a switch-engine built from the locomotive works. It is built for road purposes, not built for switching in the yard. It would not be considered safe as a switch-engine. There was a good deal of traffic at the time in that yard, requiring constant switching. If it had been a sloping tank, such as they build regularly for switching purposes, I could have seen the man in time to have stopped the engine. As it was, I did not see him, and could not have seen him, had I been looking that way. I could have stopped in two, three, or four feet." The servant of the railroad company who was stationed in front of the engine, to look out and give signals to the engineer, testified that when he saw the imminent danger of the deceased he gave to the engineer a signal to stop, just before it struck the man, and then he jumped off, and gave him another signal, and told him to stop, which he obeyed; but by that time the engine had run over the man.

A witness for plaintiff was permitted to testify, over the objection of defendant, that he saw another man, who was working by the side of the deceased, "when he made a jump, and the engine struck his left foot, caught his foot, turned him around." Another of plaintiff's witnesses was asked the question, "Do they not use on defendant's road a regular switch-engine in Marshall?" Defendant's counsel objected; but the court permitted the witness to answer the question, and he replied: "They are used in Marshall. Yes, when I was there they used a switch-engine with sloping tank, same as the Santa Fe." It is insisted that the evidence should have been excluded in both instances. We do not think so. Under the peculiar circumstances of this case, we think that evidence that another man, at the same place and in the same peril that the deceased was, came so near being run over, is a circumstance tending to show that the peril of the deceased was not brought about by his own negligence. The fact that two men remained on the track without...