Paris & G. N. Ry. Co. v. Stafford

• Decision Date: 09 November 1932
• Docket Number: No. 1589-5963.,1589-5963.
• Citation: 53 S.W.2d 1019
• Parties: PARIS & G. N. RY. CO. et al. v. STAFFORD.
• Court: Texas Supreme Court

Page 1019

53 S.W.2d 1019

PARIS & G. N. RY. CO. et al. v. STAFFORD.

No. 1589-5963.

Commission of Appeals of Texas, Section A.

November 9, 1932.

Error to Court of Civil Appeals of Sixth Supreme Judicial District.

Action by Pearl Stafford, administratrix of the estate of Cecil Stafford, deceased, against the Paris & Great Northern Railway Company and another. A judgment for plaintiff was affirmed by the Court of Civil Appeals [36 S.W.(2d) 331], and defendants bring error.

Reversed and rendered.

E. T. Miller, of St. Louis, Mo., Edgar Wright, of Paris, and Goree, Odell & Allen, of Fort Worth, for plaintiffs in error.

John F. Sturgeon, of Pampa, Sizer & Gardner, of Monett, Mo., and Sturgeon, Birmingham & Sturgeon, of Paris, for defendant in error.

SHARP, J.

This suit was filed by Pearl Stafford, administratrix of the estate of Cecil Stafford, deceased, against the Paris & Great Northern Railway Company and the St. Louis, San Francisco Railway Company to recover damages for herself and minor children growing out of the death of Cecil Stafford, an employee of the railway companies, on account of the derailment of the train near Paris, Tex., on September 9, 1927. The suit was brought under the Federal Employers' Liability Act (45 USCA §§ 51-59). The case was submitted to the jury upon special issues, and based upon the answers made to the special issues, the trial court entered judgment for the plaintiffs for $20,000. An appeal was made to the Court of Civil Appeals at Texarkana and the judgment of the trial court was affirmed. 36 S.W.(2d) 331.

In substance, plaintiffs alleged: (1) That a short time prior to the injury to Cecil Stafford, three colored boys, while operating a Ford car on the highway and while making the turn or curve to cross over the railroad track near the switch stand, ran into and struck the switch stand with the car, and by reason of the deteriorated condition of cross-tie to which the switch stand was spiked, and by reason of the defective condition of the switch and switch stand, the attachments and fastenings thereof, and by reason of being set upon one tie instead of two, the switch stand was moved and the top part thereof was slightly leaned or shoved over, and its fastenings and attachments loosened. (2) That these facts were known to the defendants, or by the exercise of proper care could have been known in time to have avoided the injury and death of Cecil Stafford; that the defendants failed to exercise ordinary care to maintain the switch, switch stand, and connections and the ties under the main line track in a reasonably safe condition; and that on account of the condition of the tie, switch stand, and its connections, they were insufficient to safely carry the weight of locomotive and train being operated on the main line track.

The defendants, in addition to their general denial and pleas of assumed risk, in substance, pleaded as follows: That if the death of Cecil Stafford was not caused by an unavoidable accident, then his death was caused solely by the intervention and independent acts of third parties, over whom the defendants had no control, in knocking down, displacing, and attempting to replace the switch stand located on defendants' property, doing so in such manner that the switch points were not placed against the rails, causing the derailment of defendants' train on a spur track located on defendants' property, and the accident resulting in the death of Cecil Stafford; that the acts of the third parties were unknown to defendants, or their employees, and that the accident occurred within a short time prior to the injury of Cecil Stafford by the derailment of defendants' train; that the defendants did not know of same and could not, by the exercise of ordinary care, have learned of same in time to have prevented the injury and death of Cecil Stafford, and that they are not liable therefor.

At the conclusion of the evidence, plaintiffs in error requested the court to instruct the jury peremptorily to return a verdict in their favor. This request was denied.

Plaintiffs in error contend: (1) That the plaintiff in this case failed to prove any actionable negligence against the defendants; (2) that the plaintiff did not prove that any negligent act of the defendants was a proximate cause of the derailment of the train; (3) that the proof conclusively shows that the acts of the negroes in knocking over the switch stand and attempting to reset it was the direct and proximate cause of the derailment of the train; and (4) that the defendants could not reasonably foresee or anticipate that the switch stand would be knocked down and would be replaced so that the target would indicate a clear track, whereas the improper replacement of the stand left an open switch.

The precise question before us for decision is this: Is there any evidence which authorizes a finding that the railway companies, under all the circumstances, ought to have anticipated that, by reason of the construction of the switch stand and its location, some one driving a car upon the highway would leave the highway and strike the switch stand, change its location, and cause the wreck of a train, as was done in this case?

The controlling facts are as follows: Going north from Paris the state highway for some distance parallels the railroad track, and at Trout Spur crosses the railroad track at right angles. Approximately 50 feet north of the highway and at the south end of a switch track there was located a switch stand. About 30 minutes before the derailment three negroes traveling north on the highway in a Ford truck ran off the highway at the curve, over and across a ditch, onto the railroad right of way and up the embankment, where they struck the switch stand and knocked it over. They attempted to replace the switch stand, and at the time of the derailment the stand was in an upright position, and the target showed clear. The record shows that the stand was placed in an improper position by the negroes, which left the switch points open about two inches, resulting in a condition that caused the derailment. The testimony further shows that on the day before the derailment the switch in question was used by the crew on a freight train in setting a car on the switch; that the switch was then all right and that it operated properly; that this same freight train passed over the track in the early morning of the day of derailment and the track was clear then and in proper order; that the section foreman inspected the switch stand on the day of the wreck and that it was in good shape. The testimony also shows that when the locomotive struck this open or cocked switch the wheels on one side followed the main line rail, and the wheels on the other side followed the east spur rail until the spread between the two rails was too great, when the wheels on one side dropped off and onto the ties. The engine then turned over. Witnesses who had observed the switch about thirty minutes prior to the wreck testified that the stand was in proper position and the points were pressing against the rails. The track was examined immediately after the derailment, and it was found from the marks on the ties that the wheels of the locomotive left the rail about 20 feet north of the switch, from which point on the track was torn up. At the switch stand, and for a distance of about 20 feet, the track was intact. The switch tie was in its proper place and functioning properly. The switch braces were holding and the track was in proper alignment at and near the switch, but the points were about 2 inches from the rails, the same distance the switch stand had been set out of its proper position.

The rule is well settled that foreseeableness or anticipation of injury is an essential element of proximate cause, and this doctrine is well supported by both federal and state decisions. T. & P. Ry. Co. v. Bigham, 90 Tex. 225, 38 S. W. 162, 163; G., C. & S. F. Ry. Co. v. Bennett, 110 Tex. 270, 219 S. W. 197, 198; Trinity & B. V. Ry. Co. v. McDonald (Tex. Com. App.) 208 S. W. 912; San Antonio & A. P. Ry. Co. v. Behne (Tex. Com. App.) 231 S. W. 354; Union Stockyards v. Peeler (Tex. Com. App.) 37 S.W.(2d) 126; St. Louis, S. F. & T. Ry. Co. v. Green (Tex. Com. App.) 37 S. W.(2d) 123; Chicago & N. W. Ry. Co. v. Bower, 241 U. S. 470, 36 S. Ct. 624, 60 L. Ed. 1107; Missouri Pac. Ry. Co. v. Aeby, 275 U. S. 426, 48 S. Ct. 177, 72 L. Ed. 351; Atchison, T. & S. F. Ry. Co. v. Calhoun, 213 U. S. 1, 29 S. Ct. 321, 322, 53 L. Ed. 671; Milwaukee & St. P. Ry. Co. v. Kellogg, 94 U. S. 474, 24 L. Ed. 256; Cole v. German Savings & Loan Society (C. C. A.) 124 F. 113, 63 L. R. A. 416; Davis v. Schroeder (C. C. A.) 291 F. 47; Engle v. Director General of Railroads, 78 Ind. App. 547, 133 N. E. 138, 140; Cleveland, C., C. & St. L. Ry. Co. v. Clark, 51 Ind. App. 392, 97 N. E. 822. Many other decisions could be cited.

In order for defendants in error to recover in this cause, the rule that established negligence does not give rise to a cause of action under the Federal Employers' Liability Act (a) if there was a direct, independent, and efficient...