Payne v. Wynne

• Decision Date: 25 June 1921
• Docket Number: (No. 2428.)
• Citation: 233 S.W. 609
• Parties: PAYNE, Agent, v. WYNNE.
• Court: Texas Court of Appeals

233 S.W. 609

PAYNE, Agent, v. WYNNE.

(No. 2428.)

Court of Civil Appeals of Texas. Texarkana.

June 25, 1921.

Rehearing Denied July 2, 1921.

Appeal from District Court, Smith County; J. R. Warren, Judge.

Suit by Carrie Wynne, administratrix, against John Barton Payne, Agent. Judgment for plaintiff, and defendant appeals. Reversed and rendered.

As temporary administratrix of the estate of R. F. Wynne, deceased, the appellee brought the suit to recover damages for the benefit of the minor sister of the deceased as next of kin dependent upon him, for the alleged negligent death of R. F. Wynne. R. F. Wynne, 35 years old, was killed April 24, 1919, while assisting in repairing engine No. 560 in the roundhouse of the railway company at Tyler, Tex. He was a carman's helper, and was assigned as assistant in making repairs on the tank or tender and the framework of locomotives. He and his coemployee were engaged at the time of injury in suit in raising the front of the tender or tank of engine 560 in order to make certain needed "light or running repairs" of the tender or tank. The engine part had been cut loose or detached from the tender or tank and backed away. They used two hydraulic jacks to raise the front end of the tender or tank. While R. F. Wynne was under the tank or tender engaged in placing a block on the trucks of the tender to let the tank rest on it while the repairing was being done, one of the jacks suddenly gave way or went down, and the tank fell towards deceased and on his head, killing him instantly. The jack was not in safe repair and was defective, and leaked so as to impair its power to sustain weight.

Plaintiff's petition alleged that the Director General of Railroads was engaged in interstate commerce at the time of the death of deceased, and that the deceased, as an employee of the Director General, engaged in making the repairs, was also engaged in interstate commerce. The ground of this contention was that the engine was used in interstate commerce at the time of the death of deceased. And continuing, the petition alleged:

"When the deceased was injured and killed the defendant, as a common carrier by railroad, was engaged in commerce between different states, and the deceased was employed by the defendant, and as such employee was engaged in such interstate commerce, in that the locomotive and tender, the latter of which deceased was engaged in repairing at the time he was killed, was at the time of said injury, and long theretofore had been, assigned to, and was regularly and constantly used and employed by, the defendant in hauling, over the road of the said St. Louis Southwestern Railway Company of Texas, freight trains, cars, and shipments of freight originating in Texas and en route to and destined to other states, and also trains, cars, and shipments of freight en route to and destined to points in Texas from other states, and in that at the time of the said fatal injury the said locomotive and tender were only temporarily in the roundhouse of the said railway company, and remained there for a few days only, for the purpose of being repaired; and while said repairs were being made, so that the tender and engine could be, as the same was, again at once used by the defendant in hauling or pulling such interstate cars and freight; and in that at the time of the deceased's death he was engaged in repairing the tender of said locomotive for the purpose of said engine and tender being used at once by the defendant in hauling such interstate freight, and that said locomotive and tender were regularly assigned to, and regularly and constantly used by, the defendant in hauling such interstate freight, both before and after the said repairs were made."

The defendant answered by (1) a general denial, and (2) specially pleaded—

"that at the time R. F. Wynne was killed he was not engaged in either interstate or intrastate commerce, but was engaged in repairing, in defendant's machine shops in the city of Tyler, an engine that had been used, prior to the time that it was put in defendant's shop for repairs, in hauling of freight trains over the railway of the St. Louis Southwestern Railway Company of Texas, and which trains hauled both interstate and intrastate commerce, and at other times only intrastate commerce; and after it had been repaired in defendant's shops, subsequent to the death of said Wynne, it was so used in the hauling of freight trains over said railway; that said engine had never been before the death of said Wynne, and has never been since his death, permanently devoted to the transporting alone of interstate cars, but was used for such business as it might be needed for;"

—and (3) contributory negligence, and (4) assumed risk.

The case was tried before a jury on special issues, and their findings were (1) that the jack in question was not in reasonably safe repair or condition to be used in making the repairs on the tender; (2) that it was negligence on the part of the defendant in furnishing the deceased the jack, in the condition it was in, to do the repairing required; (3) that such negligence was the proximate cause of the injury to the death of the deceased; (4) that the injury to the deceased was not the result of an accident; (5) that the deceased was not guilty of contributory negligence; (6) that the deceased did not assume the risk of being injured by the condition of the jack; and (7) that the beneficiary was dependent on the deceased at the time of his death. The jury also made a finding as to the amount of damages. There is evidence to support these findings of fact, and they are here adopted as the facts of the appeal, without making further statement of the evidence on any of those issues.

The St. Louis Southwestern Railway Company of Texas, the railway in question, is a Texas corporation, and its general offices, roundhouses, and machine shops are located at Tyler, Tex. Tyler is the end of three divisions of the road in Texas—from Tyler to Waco, from Tyler to Lufkin, and from Tyler over the Fort Worth Division to Mount Pleasant and Texarkana, Tex. The state line between the states of Texas and Arkansas runs through and divides the city of Texarkana. This line of railroad extends to the state line of Texarkana, and there makes physical connection with the railroad of the St. Louis Southwestern Railway Company, an Arkansas corporation. As testified:

"The other connections which the St. Louis Southwestern Railway Company of Texas has at Texarkana are the Kansas City Southern, the Missouri Pacific, or Iron Mountain, as it is called."

The said two St. Louis Southwestern railways are called "the Cotton Belt System." As testified:

"The Cotton Belt Railroad in Texas is a part of a system of railroads. This Cotton Belt System extends into the states of Arkansas, Texas, and Missouri. Texarkana is the connecting point between the Cotton Belt System in Texas and the Cotton Belt System north of Texas. * * * In handling cars of freight destined to points in Arkansas, Missouri, and the north and east over the Cotton Belt Railway, it is at Texarkana that the Cotton Belt would deliver them to its other part of the system; and it is at Texarkana that freight cars coming into Texas over the Cotton Belt System from Arkansas, Missouri, and other points north and east would be delivered to the Cotton Belt of Texas."

And, quoting from the witness:

"Under the system in operation on the Cotton Belt (the railroad in controversy) the engines are assigned to through freights or to local freights. What is meant by that is that an engine pulling a freight train would be assigned, for instance, to pull through freight trains or it would be assigned to pull local freight trains. * * * The difference between a through freight train and a local freight train is that a local freight train picks up and sets out loads at different stations on the line, and a through freight train pulls cars from one terminal to the other; that is, where they are loaded with freight moving out of the state or moving from one point in the state to another."

It was then proven that engine No. 560, the one in question, was one of the largest types of freight engines in use on this railroad. Engines of the 560 class, 2 as the witness said,

"are usually given to the handling of freight trains, and to the handling of through freight trains. In an occasional emergency they sometimes handle some other class of freight trains; in an occasional emergency they handle any train that might be necessary to be handled; in other words, they are usually applied to the handling of those through freight trains, but when necessary they are applied to other purposes. If we have cars of freight destined to points outside of Texas, then those cars, as a rule, are pulled in the through freight trains. Smaller type or smaller size engines than this 560 were set aside or used regularly or ordinarily in the local freight-train service."

On cross-examination the witness was asked the following question:

"Q. Now are there any locomotives on the Cotton Belt that are used exclusively for pulling cars destined from the state out of the state, and from out of the state in the state— interstate commerce?

"Ans. No; there are no particular locomotives that are set aside for the pulling of interstate commerce; in other words, the locomotives are used to pull indiscriminately interstate and intrastate commerce. There are not any trains that are used for pulling exclusively interstate commerce or intrastate commerce, and this locomotive in question, 560, was not set aside for that particular purpose, but it was used indiscriminately in pulling interstate or intrastate commerce."

On direct examination the witness said:

"Yes; 560 was set aside and used regularly in pulling through freight trains. I said in answer to the attorney that in case of emergency it might be then called out and used for some other freight service...