El Paso & S. R. Co. v. Darr

• Decision Date: 31 January 1906
• Citation: 93 S.W. 166
• Parties: EL PASO & S. R. CO. v. DARR.<SMALL><SUP>*</SUP></SMALL>
• Court: Texas Court of Appeals

93 S.W. 166

EL PASO & S. R. CO. v. DARR.^*

Court of Civil Appeals of Texas.

January 31, 1906.

Rehearing Denied February 21, 1906.

Appeal from District Court, El Paso County; J. M. Goggin, Judge.

Action by James M. Darr against the El Paso & Southwestern Railroad Company. From a judgment for plaintiff, defendant appeals. Modified.

Patterson, Buckler & Woodson, for appellant. Turney & Burges, for appellee.

FLY, J.

Appellee sued appellant for damages, arising from personal injuries, and recovered a judgment for $4,500.

We find that appellee was an inspector of cars, in the employ of the Galveston, Harrisburg & San Antonio Railway Company, and while inspecting cars on the east end of a transfer track used jointly by appellant and his employer, three cars loaded with copper were shunted on the west end of the transfer track by appellant, and, after moving down the track for 600 yards, struck the 12 cars appellee was inspecting, and one of the cars ran against him and seriously and permanently injured him in the sum found by the jury. Not more than 30 minutes before the accident Thornton, appellant's yardmaster, who had the three cars pushed on the transfer track, had gone with appellee to the 12 cars, and must have known that he was engaged in inspecting them. The east end of the track was used by appellee's employer for inspection, and it was used in the forenoon. The accident occurred between 9 and 10 o'clock in the forenoon. The cars that were being inspected were struck with sufficient force to move them over a car's length, although some of them had the brakes set on them. We find that appellant was negligent in turning the cars loose on a down grade, and, without any signal, permitting them to run with violence into the cars being inspected by appellee. There was a rule adopted by appellee's employer requiring employés when working about cars to display a blue flag, but appellee was not guilty of negligence in not displaying it because the rule had not been enforced, and appellant knew that no flag of any color was ever used by appellee or any other employé while working on the transfer track. A flag would not have been regarded by the yardmaster had it been displayed. After the 10 or 12 cars had been placed on the transfer track it was the duty of the appellee to inspect them, and the yardmaster knew that appellee was engaged in that duty when the three cars were run on the transfer track. There was evidence that tended to prove that the rule as to the display of blue flags did not apply to the transfer track.

The question as to whether the employer of appellee had a rule requiring its inspectors and other employés to display blue flags when working under cars, can have no force in this case, not only because it had in effect been revoked by a total failure to observe it, but because appellant's yardmaster, who directed the movement of the cars that caused the disaster, swore that he would not have regarded the blue flag had it been displayed. Not only that but the yardmaster, a few minutes before the accident occurred, went with appellee to the place where he was hurt. The yardmaster must have known that appellee was engaged in inspecting the cars when he caused the cars to be thrown on the transfer siding. He knew that it was a custom to so inspect the cars as soon as they were put on the transfer track, he knew that appellee had gone to those cars not more than 30 minutes before, and he knew that it took more time than that to inspect the cars. He must have known that appellee was engaged in inspecting the cars. It follows that appellant has no ground of complaint, because the court refused to give its charge on the contributory negligence of appellee in failing to display the flag. Furthermore, it has no ground of complaint, because the court fully and clearly presented the matter of contributory negligence as to the flag, to the jury. Appellant did attempt to show that the three cars should have been coupled with the cars standing on the transfer track, and the court properly refused to instruct the jury that appellant would not be liable if no more force was used than was necessary to make a coupling of the cars. The charge was objectionable also because it ignored the yardmaster's knowledge of appellee's presence on the track and made appellant's negligence rest alone on the amount of force used in shunting the cars.

The fifth assignment of error complains of the refusal of the court to charge the jury that appellee could not recover if the yardmaster, engineeer, and brakeman did not know, or have reason to believe, that appellee was under or between the cars. All of the evidence on the issue of the knowledge of appellant as to the position occupied by appellee tended to show that it knew that he was engaged in inspecting the cars, and the matter was sufficiently presented by the court. Appellant made no effort to contradict the evidence of the yardmaster as to his knowledge of the position occupied by appellee. The cars were placed on the transfer track for inspection, appellee was engaged in inspecting them, and the yardmaster knew it. The brakeman and engineeer did not testify.

What has been written in the consideration of the foregoing assignments of error disposes of the sixth, seventh, eighth, ninth, tenth, eleventh, twelfth, thirteenth, fourteenth, and fifteenth assignments of error. All of them refer to refused charges on the subject of contributory negligence which was fully explained in the general charge of the court. Several of them were directly on the weight of the evidence and ignored other issues clearly raised by the evidence. For instance one of them was an instruction that no notice whatever was given that apppellee was about the cars, when appellant's yardmaster swore that he had gone to the cars with appellee a short time before the accident. No statements are made under these assignments and they might have been totally disregarded by the court.

The sixteenth assignment of error is without merit. It is not followed by a statement and seeks to destroy evidence, to which appellant did not object, by instructing the jury to disregard it. If the evidence desired to be withdrawn was objectionable a bill of exceptions should have been taken to its admission.

The seventeenth assignment of error is not followed by any statement and should not be considered. However, it may be said that the charge was properly refused because the uncontroverted evidence showed that appellant would not have regarded a blue flag if it had been conspicuously displayed. If the employer of appellee was, therefore, negligent in not enforcing the rule, such negligence had no connection whatever with the accident. It would have occurred in spite of the enforcement of the rule. Nonenforcement of the rule not being the proximate cause of the injuries inflicted on appellee, his employer could not be held liable for damages flowing from such injuries.

Appellant being cognizant of the fact that inspectors were at or near the cars standing on the transfer track, it was not error for the court to instruct the jury as to the negligence of appellant in violently striking said cars with heavily loaded cars. There was no evidence that tended to show that appellee was guilty of any negligence that contributed to his injuries. Appellee was injured on July 4, 1903, and on January 28, 1904, received from the Galveston, Harrisburg & San Antonio Railway Company the sum of $500, and executed at the same time the following written instrument: "Release in full. In consideration of the sum of five hundred and 00-100 dollars ($500.00) to me this day paid by the Galveston, Harrisburg & San Antonio Railway Company, I hereby release said company from all claims, demands, and causes of action against it which have accrued, or may hereafter accrue, to me for all damages of every nature whatsoever, received in, and resulting from, an accident at or near El Paso, Texas, on or about July 4, 1903, in which I, J. M. Darr, was injured while employed as car inspector by being struck by a car and knocked down. This settlement, however, with the G., H. & S. A. Railway Company shall in no wise affect any claim which I may have against any other company growing out of said accident. Said sum is accepted by the undersigned in settlement for all damages, injuries, and disabilities, which may hereafter result from said accident, as well as for those now known to have been caused thereby. It is expressly understood and agreed that said sum is paid and accepted, not only for time and wages lost, expenses incurred, and property damaged and destroyed, but also in full and final settlement of all claims of every nature caused by said accident. To secure this settlement and the payment of said sum, I hereby represent to said company that I am 21 years of age and that I rely wholly upon my own judgment, belief, and knowledge of the nature, extent, and duration of said injuries, disabilities and damages, and that no representations or statements about them made by said company's surgeons or agents, have influenced me in making, nor induced me to make, this settlement. No promise of employment nor other agreement not herein expressed has been made by said company, nor by any of its officers, agents or employés."

It is the contention of appellant that the instrument not only released the Galveston, Harrisburg & San Antonio Railway Company, but that it also had the effect of releasing appellant from all liability for damages arising from its negligence in connection with the injuries inflicted on appellee, and that the court erred in making the efficacy of the release, so far as appellant was concerned, depend upon proof of the Galveston, Harrisburg & San Antonio Railway company being a joint tort-feasor. It is claimed that appellee having dealt with that railway company as a joint tort-feasor, and having accepted the $500 from it, and having...