Patterson v. Gulf, C. & S. F. Ry. Co.

• Decision Date: 02 November 1934
• Docket Number: No. 13041.,13041.
• Citation: 77 S.W.2d 1073
• Parties: PATTERSON v. GULF, C. & S. F. RY. CO.
• Court: Texas Court of Appeals

77 S.W.2d 1073

PATTERSON v. GULF, C. & S. F. RY. CO.

No. 13041.

Court of Civil Appeals of Texas. Fort Worth.

November 2, 1934.

Rehearing Denied December 14, 1934.

Appeal from District Court, Tarrant County; Marvin H. Brown, Judge.

Action by R. L. Patterson against the Gulf, Colorado & Santa Fé Railway Company. Judgment for defendant, and plaintiff appeals.

Affirmed.

Houtchens & Houtchens and J. Harold Craik, all of Fort Worth, for appellant.

Terry, Cavin & Mills, of Galveston, and Wren, Pearson & Jeffrey, of Fort Worth, for appellee.

DUNKLIN, Chief Justice.

The Trinity Portland Cement Company is engaged in manufacturing cement to be sold on the market. Its manufacturing plant is located near the main line of the Gulf, Colorado & Santa Fé Railway Company. To facilitate loading and shipping its products, the cement company, at its own expense, constructed and now owns a loading track extending from the railway track to its plant, on which empty railway cars are delivered by the railway company and are then moved by the cement company down the loading track to its plant. After they are loaded the railway company takes charge and moves them over to its line for destinations designated by the cement company. The switch track is on a slightly descending grade from the railway track to the manufacturing plant. At the request of the cement company a switching crew of the railway company placed four empty box cars on the loading track to be loaded with cement for shipping. R. L. Patterson, an employee of the cement company, undertook to bring down to the plant two of the box cars nearest thereto and south of defendant's track. For that purpose he uncoupled those cars from the other two, then climbed on top of them and released the brakes that had been set to keep them from drifting down the loading track by gravity. When he released the brakes the two cars of their own momentum started drifting as intended, with Patterson riding atop of them. As he neared the place for spotting them he slowed down their movement by setting the brakes, and while so doing the other two cars which had followed down the loading track of their own momentum, after the other two had been uncoupled from them, collided with the two cars on which Patterson was riding. As a result of that collision he was thrown between the moving cars and seriously injured.

Patterson instituted this suit against the railway company to recover damages for the injuries so sustained, and he has prosecuted this appeal from a judgment denying him any relief.

The evidence showed that the car from which the two cars Patterson was riding had been uncoupled had a defective brake chain, by reason of which the brake on that car could not be set, and that the brake on the rear car to which it was attached had not been set. The absence of a brake set on at least one of those two cars accounted for their movement by gravitation down the loading track to the place of collision.

In his petition plaintiff alleged that it was defendant's rule and custom, well known to all its employees and the employees of the cement company, to set brakes on all cars left on the loading track; that he undertook the movement of the two cars he was handling without examining to ascertain whether or not brakes had been set on the two left behind, relying on defendant's compliance with that custom, and that defendant was guilty of negligence which was the proximate cause of his injury in failing to set the brakes on those other two cars.

In addition to a general denial, defendant pleaded specially that it placed the four cars on the loading track of the cement company at the place designated by that company; that the loading track was owned and controlled exclusively by the cement company; that defendant had no control whatever of the movement of the cars after they were so placed; that plaintiff was not defendant's servant, but an employee of the cement company who alone controlled and directed his movements; that the cars were placed on the loading track in a safe condition for handling and plaintiff's injury was chargeable to some agency intervening between such placing and the collision in question and for which defendant was not responsible; and that plaintiff was guilty of contributory negligence in failing to examine the brakes on the two north cars of the string and in failing to set the brakes thereon, before starting the two cars on which he was riding when injured.

Following are special issues submitted to the jury with findings thereon:

"1. Was it the general custom, rule and practice of the employees of the defendant Railway Company to set and securely fasten the brakes upon each box car when it spotted cars on the Trinity Portland Cement Company's hillside track?

"Answer: No.

"2. If you have answered question No. 1 `no' you need not answer this question, but if you have answered same `yes,' then answer the following question:

"Did the employees of the defendant, who spotted the box cars on the cement company's hillside track on the afternoon of June 16, 1928, set and securely fasten all of the brakes on all of the cars spotted at said time?

"Answer: ____.

"3. If you have answered question No. 2 yes, you need not answer this question, but if you have answered the same No, then answer:

"Was the failure, if any you have found on the part of defendant's employees to set and securely fasten the brakes on all of the cars spotted by the defendant's employees on the afternoon of June 16th, 1928, on the cement company's hillside track, negligence as that term has been defined to you by the court?

"Answer: Yes.

"4. If you have answered question No. 3 No, you need not answer this question, but if you have answered same Yes, then answer:

"Was such negligence, if any you have found in your answer to question No. 3, a proximate cause, as that term has been defined to you, of the accident in question?

"Answer: Yes.

"5. Was the brake chain broken on the car which was the third car from the south end of the string of cars that was spotted by the defendant's employees on the cement company's hillside track on the afternoon of June 16, 1928, at the time the string of cars was left on said hillside track?

"Answer: Yes.

"6. If you have answered question No. 5 No, you need not answer the next question, but if you have answered same Yes, then answer:

"In the exercise of ordinary care, as that term has been defined to you by the court, ought the defendant employees, in charge of spotting said string of cars, to have discovered the broken chain (if any you have found was broken in answer to question No. 5 submitted to you)?

"Answer: No. * * *

"8. Was the failure on the part of plaintiff Patterson to inspect the brakes on the cars north of the car or cars, which he moved just prior to the accident, contributory negligence as that term has been defined to you by the court?

"Answer: No.

"9. Was the failure upon the part of plaintiff Patterson to set the brakes on the car immediately north of the car, or cars, which he moved just prior to the accident, contributory negligence as that term has been defined to you by the court?

"Answer: ____."

In answer to another issue the jury assessed plaintiff's damages at $40,000 as the result of his injuries.

When those findings were made, the jury returned into court and stated that it was impossible for them to agree on a finding to issue No. 9. The court then polled the jury and in response thereto each one replied that he had agreed on the findings made up to that time. The court then discharged the jury without requiring them to make a further effort to agree on an answer to issue No. 9 and without requiring their signature to the findings already made.

We may say at the outset that we do not believe that the verdict was vitiated by the failure of the foreman to sign it. Aycock v. Paraffine Oil Co. (Tex. Civ. App.) 210 S. W. 851; Laybourn v. Bray & Shifflet (Tex. Civ. App.) 214 S. W. 630.

Nor is appellant in any position to complain of the absence of a finding by the jury in answer to issue No. 9 since that question presented a defensive issue and not one on which plaintiff relied for recovery.

Appellee insists that the answer of the jury to special issue No. 3 was voluntary and should not be given effect in any event, since the jury had not answered issue No. 2 and since they were instructed by the court that they need not answer issue No. 3 unless they had answered issue No. 2 in the negative. In support of this contention, appellee has cited Speer on the Law of Special Issues, § 44, p. 573; American Citizens' Labor & Protective Inst. v. Bandy (Tex. Civ. App.) 2 S.W.(2d) 977.

We do not concur in this contention, especially in view of the fact that the trial court did not instruct the jury not to answer issue No. 3 in the event stated, but his...