Missouri Pacific Railroad Co. v. Southern Pacific Co.
| Citation | 430 S.W.2d 900 |
| Decision Date | 19 June 1968 |
| Docket Number | No. 133,133 |
| Parties | MISSOURI PACIFIC RAILROAD COMPANY, Appellant, v. SOUTHERN PACIFIC COMPANY, Appellee. . Houston (14th Dist.) |
| Court | Court of Appeals of Texas. Court of Civil Appeals of Texas |
Ben Sewell, Tom Terrell, Sewell, Junell & Riggs, Houston, for appellant.
John F. Heard, Baker, Botts, Shepherd & Coates, Houston, for appellee.
On September 20, 1959, Jessie Liles, a brakeman employed by Texas & New Orleans Railroad Company was injured while in the process of switching a freight car. The car being switched belonged to Missouri Pacific Railroad Company and had been delivered by its owner to Texas & New Orleans Railroad Company for transportation to its destination at a point on the latter's lines. The car, at the time of its delivery, had a defective hand brake mechanism which defect was a cause of the injury to Liles. Liles did not file suit to recover damages for his injuries but, on March 27, 1962, Texas & New Orleans Railroad Company paid him $25,000.00 in settlement of his claim. Subsequently Texas & New Orleans Railroad Company was merged into Southern Pacific Company which latter company acquired all of the rights growing out of the transaction here in question. Southern Pacific Company filed suit against Missouri Pacific Railroad Company for full indemnity or , in the alternative, for contribution. A non-jury trial resulted in a judgment for Southern Pacific Company for full indemnity. Missouri Pacific Company has perfected its appeal.
The parties hereto will be referred to as Missouri Pacific and Southern Pacific.
The lines of Missouri Pacific and Southern Pacific intersect at Sinton, Texas. At the point of such intersection sidetracks are maintained to be used in the interchange of cars from the trains of one company to the trains of the other. On September 20, 1959, Missouri Pacific delivered one of its cars to such transfer line to be picked up by Southern Pacific and delivered to Gregory, Texas. When the Southern Pacific train arrived shortly before midnight it coupled onto such car by heading its engine into it. It was necessary to switch the car so as to get it behind the engine. To do this the car was pushed off the sidetrack onto the main line. The engine then, with the car coupled to its front, began moving backwards. When enough speed was reached to cause the car to coast down the main line, the engine was cut loose. The engine then sped on away from the rolling car and into the sidetrack. The switch into the sidetrack was then closed before the car got there so that the car rolled on down the main line. The intention was that, after the car had passed the switch, the engine would pull back onto the main line so that the car would be behind it.
Liles was standing at the car when the engine first coupled onto it. At the time of the coupling, Liles noticed that the wheels on the car skidded on the track, indicating that its brakes were set. He checked the hand brake by feeling of the upright brake rod. The fact that the rod felt taut indicated to him that the handbrake was set. He then released the 'dog' that holds the hand brake in the set position. When he did so the wheel used in setting the hand brakes spun to the left--again indicating to him that the hand brake had been set and had caused the wheels to skid when the coupling occurred.
After following this procedure by which Liles thought the hand brake had been released, he then bled the air from the air brake system thereby releasing the air brakes.
It is the practice, in spotting cars to be picked up later (such as was done here), to set the brakes on the spotted car. The hand brakes and the air brakes are separate, independent systems. From subsequent events it can be concluded that when this car was spotted the Missouri Pacific brakemen probably undertook to, and thought they had, set both the hand brake and the air brake. The hand brake, because of its defect, did not set, but the air brake did so and thus caused the wheels of the car to skid at the time of the coupling, as observed by Liles.
After the car was coupled to the front of the engine and its brakes released, it was Liles' job to ride it during the switching procedure. The procedure outlined above went as intended until the car on which Liles was riding had rolled past the closed switch into the sidetrack where the engine had gone. Liles then tried to apply the hand brake to stop the car so that the engine could pull onto the main line and back into it for a coupling. The brakes, however, failed to hold. There was a slight downgrade in the direction in which the car was rolling and despite the effort of Liles to apply the brakes, the car gained speed. It was rolling in the direction of unguarded crossings in the town of Sinton. The air brake could not be used because the car was not coupled to the train. As he passed another brakeman on the ground near the sidetrack switch, Liles called to him that the brakes would not hold. The brakeman, by signals, caused the engine to come again out onto the main line, closed the sidetrack switch and told the engineer of Liles' predicament. The engine, moving backwards, started chasing the rolling car so as to couple onto it and stop it by applying the engine brakes. Since the car, on the downgrade, was gaining speed the engine to catch it had to run at a greater speed than that at which a safe coupling should be made. When the engine reached the car the coupling was made with such force that Liles was jarred loose from his hand hold on the car, fell to the ground and received the injury for which he was paid $25,000.00 by Southern Pacific.
The evidence showed that the car in question had been in the Missouri Pacific shop at Palestine, Texas for general repairs from August 27, 1959 to September 11, 1959. Records were kept of the repairs done and there was no record of any repairs having been done to the hand brake system nor do the records show that the hand brake system was defective when the car left the shop. In fact, an employee of Missouri Pacific who had done some of the repairs on the car testified that he had tested the hand brakes before the car left and that they were not defective. There was no evidence showing how the car was used from the time it left the shop until it was, by Missouri Pacific, spotted on the transfer track at Sinton on September 20, 1959, to be picked up by Southern Pacific.
After the accident the members of the Southern Pacific crew discovered the defect in the hand brake system on the Missouri Pacific car. The hand brake was set by turning a large hand wheel at the end of and near the top of the car. Force applied to the hand wheel was, through various connecting devices, transmitted to the brake shoes, causing them to clamp onto the cars' wheels, preventing them from turning. The hand wheel was first connected to the top of a perpendicular rod. (This rod was was found by Liles to be taut when he first tested the brakes to see if they were set). As the hand wheel was turned to the right, clock-wise, it caused the perpendicular rod to pull upward. The bottom of this rod was connected to one end of a device called a 'rocker arm.' To the other end of the rocker arm was attached one end of a chain. The other end of the chain was connected to the brake shoe. Thus, the transmission to the brake shoe of the force applied to the hand wheel depended on the free movement of the rocker arm. On the car in question there was a steel beam, called an 'end sill,' so positioned as to prevent the movement of the rocker arm and thus prevent the effective application of the brakes.
The testimony indicates that during the time the car was in Missouri Pacific's shop, some repairs were done to the end sill on the car. One witness testified that the end sill appeared to have been freshly painted or sprayed and that some of the freshly sprayed paint got onto the adjacent parts of the car, including the wedged rocker arm. From one of the photographs received in evidence by the trial court it could have been concluded that this rocker arm was in its wedged position at the time of the spraying of the end sill.
Upon the above recited evidence the trial court found that Missouri Pacific was guilty of negligence which proximately caused the injuries to Liles in creating the defect in the hand brake, in failing to discover the defect by proper inspection, in failing to correct the defect, and in delivering the car to Southern Pacific in its defective condition. The trial court also found that Southern Pacific, through the agency of Liles, made a proper inspection of the hand brakes on the car in question and was not negligent in the manner in which it conducted the switching operations on the occasion of the accident. The trial court further found that Liles was not negligent in undertaking to switch the car under the circumstances in question and found that the settlement made by Southern Pacific was...
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