Payne v. Albright

• Decision Date: 10 November 1921
• Docket Number: (No. 2438.)
• Parties: PAYNE, Agent, v. ALBRIGHT.
• Court: Texas Court of Appeals

235 S.W. 288

PAYNE, Agent, v. ALBRIGHT.

(No. 2438.)

Court of Civil Appeals of Texas. Texarkana.

November 10, 1921.

Appellee's Rehearing Denied December 1, 1921.

Appellant's Rehearing Granted December 1, 1921.

Appeal from District Court, Gregg County; Chas. L. Brachfield, Judge.

Action by J. L. Albright against John Barton Payne, Agent. From judgment for plaintiff, defendant appeals. Reversed.

At 10 or 11 o'clock of the night of September 30, 1919, while discharging duty he owed as a "headlight trimmer" employed by the Director General of Railroads, then operating the Texas & Pacific Railway Company's line of road, appellee fell from the pilot of road engine 706 into a pit in said railway company's yard at Longview, and thereby suffered serious injury to his person. On the theory that he so fell because of negligence of the carrier, appellee sued and recovered the judgment for $12,500, from which the appeal is prosecuted.

In his petition appellee alleged that the engine he fell from belonged to a class the carrier had equipped with two steps (one elevated above the other) on the pilot, for use in going to the pilot deck or front part of the engine, and that two steps on engines of that class, because of their size, were proper and necessary for that purpose; that at the time of the accident the engine was equipped with only the lower one of the two steps it should have been equipped with; that said engine was then in the carrier's roundhouse, which was poorly lighted; that in attempting to go on the engine in the discharge of his duty he placed one of his feet on the step on the pilot, and reached with his other foot for the step which should have been and which he supposed was at a point on the pilot above the other step; that because the carrier had not equipped the engine with another step, or, if it had, had removed same, he found no support for his foot when he reached for the step, and thereby was caused to fall; that it was negligence on the part of the carrier not to have the engine equipped with two steps, and not to have the roundhouse lighted better than it was, and that its negligence in one or both of those respects was the proximate cause of the injury he suffered. Appellee further alleged that at the time of the accident the carrier was engaged in interstate commerce as a common carrier, that he was working for the carrier in such commerce, and that the engine was in a defective condition within the meaning of the federal safety appliance statute (sections 8631 to 8639, U. S. Comp. Stat.), in that it was equipped with only one when it should have been equipped with two steps on the pilot.

In its answer the carrier alleged that the pilot "was constructed and maintained," quoting, "in accordance with the rules of the Interstate Commerce Commission, which were made by authority of the laws of the United States, and the service that the plaintiff was performing, or about to perform, on said engine was for the purpose of equipping the same to pull or haul interstate commerce." The carrier also set up assumed risk and contributory negligence on the part of appellee as a defense against the recovery he sought.

In response to special issues submitted to them the jury found as facts:

(1) That the carrier "adopted for the class of locomotives on which the plaintiff was injured two steps on each side of the pilot as a standard of safety or as a precaution against injuries to employés in the use thereof under such circumstances as the plaintiff was using the engine."

(2) That "the failure of those operating the property of the railway company to have the engine from which the plaintiff fell equipped with two steps on the side from which plaintiff fell constituted negligence upon the part of those operating said property."

(3) That such negligence was the proximate cause of plaintiff's injury.

(4) That the plaintiff was not guilty of any negligence which proximately contributed to the accident.

(5) That plaintiff was not injured "by reason of a risk assumed by him."

(6) That plaintiff was damaged in the sum of $12,500.

Young & Stinchcomb, of Longview, for appellant.

Jones, Sexton & Jones, of Marshall, and E. M. Bramlette, of Longview, for appellee.

WILLSON, C. J. (after stating the facts as above).

The parties to the appeal agree that at the time of the accident the carrier was engaged in interstate commerce, and that appellee was employed by it in such commerce, within the meaning of the federal Employers' Liability Act April 22, 1908 (sections 8657-8665, U. S. Comp. Stat.).

The terms of a rule adopted by the Interstate Commerce Commission by an order dated March 13, 1911, in force at the time appellee was injured, fixing "safety appliance standards" for locomotives used in road service, in conformity to the "safety appliance statutes" (sections 8630 to 8639c), required pilots on such engines to be equipped with two steps, "one on or near each end of buffer beam outside of rail, and not more than 16 inches above rail."

Appellant insists it conclusively appeared from the testimony that engine 706 was so equipped, and that negligence on the carrier's part could not be predicated on its failure to have two steps on each side of the pilot.

Appellee does not deny that the engine was equipped with steps as required by said rule. His contention is that the rule applicable was not that one, but one the carrier, as authorized (he asserts) by the order of said Commission referred to, had adopted, and which required engines of the class 706 belonged to to be equipped with two steps on each side of the pilot. The insistence is based on a proviso in said order that nothing contained in it should "be construed," quoting "as prohibiting any carrier from enforcing additional rules and instructions not inconsistent with the foregoing, tending to a greater degree of precaution against accidents," and on testimony showing that engines of the 706 class were equipped with two steps on each side of the pilot when same were purchased by the carrier, and that they were afterwards used by it as so equipped. It is argued that such use was in effect an adoption by the carrier of an "additional rule," within the meaning of said proviso, applicable to that particular class of engines, that by such adoption it became a "safety appliance rule" within the act of Congress, which the carrier violated when it removed the upper one of the two steps on 706, and that a consequence of such violation of such "additional" rule by the carrier was to render it liable to appellee as it would have been had he been injured as a result of a violation by it of a safety rule directly prescribed by said Commission.

It is clear, we think, that the contention should not be sustained.

Even if it should be conceded that the use of the particular class of engines so equipped was an adoption of a rule requiring them to be so equipped, we think it would have to be held, nevertheless, that the rule was not one the carrier was authorized to make; for it was not consistent with the rule the Commission had adopted, and, if given effect, would not operate as an "addition" to that rule, but as a substitute for it, so far as engines of the particular class were concerned.

The rule promulgated by the Commission applied to all road engines alike. If, therefore, the rule which appellee claims the carrier adopted did not operate as a substitute for the Commission's rule, two rules were applicable to the class of engines in question —one requiring them to be equipped with one step; and the other requiring them to be equipped with two steps on each side of the pilot. In that case the carrier could not comply with one of the rules without violating the other one. Of course, the proviso in...