Pecos & N. T. Ry. Co. v. Rosenbloom

• Decision Date: 28 October 1911
• Citation: 141 S.W. 175
• Parties: PECOS & N. T. RY. CO. v. ROSENBLOOM et al.
• Court: Texas Court of Appeals

141 S.W. 175

PECOS & N. T. RY. CO. v. ROSENBLOOM et al.

Court of Civil Appeals of Texas. Amarillo.

October 28, 1911.

Rehearing Denied November 24, 1911.¹

Appeal from District Court, Potter County; L. C. Barrett, Special Judge.

Action by M. A. Rosenbloom and others against the Pecos & Northern Texas Railway Company. From a judgment for plaintiffs, defendant appeals. Affirmed.

Terry, Cavin & Mills, Madden, Trulove & Kimbrough, and F. M. Ryburn, for appellant. H. H. Cooper and J. A. Stanford, for appellees.

GRAHAM, C. J.

Mrs. M. A. Rosenbloom, for herself and as next friend for her minor children, Milton and Matilda Rosenbloom, and for the use and benefit of Minnie and Isaac Rosenbloom, mother and father of her deceased husband, M. A. Rosenbloom, sued the Pecos & Northern Texas Railway Company in the district court of Potter county, Tex., to recover damages alleged to have resulted from the negligent killing of M. A. Rosenbloom while he was engaged in the service of appellant. From a judgment based on the verdict of a jury, rendered on September 13, 1910, in favor of appellees, for the gross sum of $7,000, and apportioned $2,000 each to the surviving wife and the two children and $500 each to the mother and father of deceased, appellant has appealed to this court.

Appellee's third amended petition, on which they went to trial, was filed on June 8, 1910, and, as grounds of negligence on the part of appellant and right of recovery by appellees, alleged, in substance, that Mrs. M. A. Rosenbloom is the surviving wife of M. A. Rosenbloom, deceased, and Milton Rosenbloom and Matilda Rosenbloom are their minor children; that Isaac Rosenbloom and Minnie Rosenbloom are the father and mother of deceased; that Mrs. M. A. Rosenbloom sues for herself and as next friend for her children and for the use and benefit of such parents; that the Pecos & Northern Texas Railway Company is a corporation, owning and operating a line of railroad extending from Amarillo southwesterly to Plainview and Texico, own extensive switchyards, etc., a Amarillo, having at the point of occurrence in question seven parallel tracks, extending north and south and located east of its main line; that the defendant used such tracks and yards as a place for starting cars, operating its trains, etc.; that a short time prior to November 27, 1909, M. A. Rosenbloom was in the service of defendant in the capacity of ticket clerk (properly seal clerk), his duties being such as to require him to be in and about such yards for the purpose of taking the numbers of all cars coming into and leaving the same and for sealing cars and preserving a record thereof; that tracks 4 and 5 of the seven side tracks which are numbered from 1 to 7 consecutively, going from west to east, are only about 6 feet apart, so that trains in motion running abreast thereon have a little open space between such tracks, barely enough for a man to stand in and not be knocked down; that on the evening of the 27th of November, 1909, there was a long freight train moving out north on track No. 4, and M. A. Rosenbloom, in the performance of his duties, was between tracks 4 and 5, by the side of said train, getting a record of the cars therein; that while he was there so doing with his face to the north, and walking along in the direction such train was moving, and while he was exercising due care and caution, a switch crew, the employés of defendant, pushed a ballast car attached to an engine along on track 5 in the same direction Rosenbloom and such freight train were moving; that such ballast car, which was very wide, was so pushed up behind M. A. Rosenbloom rapidly and with great force and violence, and without ringing the bell or blowing the whistle or giving other warning; that such ballast car while being so moved struck M. A. Rosenbloom, knocked him down, and ran over him, killing him; that at the time the space between such train on track 4 and ballast car and engine on track 5 was so narrow that a man situated between them, if he happened to move to one side or the other, or to stumble and throw his body to one side or the other, would be struck by the moving cars; that, as such ballast car and switch engine so approached Rosenbloom, the employés thereof saw him, and realized that he was in a perilous position, and liable to become confused in attempting to escape, and get caught by one of such trains, and knew that he was liable to sidestep or stumble so as to be struck by the moving cars, and that, if they approached him from behind without his being apprised thereof, he would be placed in a perilous position, and was likely to be run over and killed, or could have so known by the use of ordinary care; that, so knowing, such switch crew negligently, and without regard for the safety of M. A. Rosenbloom, ran such engine and ballast car rapidly and approached him from behind without giving any warning, so that when such cars were within 18 or 20 feet of M. A. Rosenbloom, either because he did not know of the approach of such engine and car, or because he became confused at the unexpected approach thereof, he attempted to cross switch track No. 5 in front of the car and was run over and killed; that the killing of M. A. Rosenbloom was the result of the negligence of defendant in the manner in which such engine and ballast car were operated and the failure of the crew to give him warning; that the crew in charge of such switch engine and ballast car, seeing M. A. Rosenbloom for a long distance before reaching him, and when about 20 or 25 feet from him, seeing that he was going to cross track No. 5, and realizing that he was in a perilous position, and liable to be run over and killed, after discovering and knowing such dangers and perilous position, failed and refused to exercise all the means at their command to avoid running over and killing him, failing to warn him, to slacken their speed, or in any manner trying to avoid killing him, and that plaintiffs were damaged thereby.

On August 17, 1910, appellant filed its amended answer, being the pleading on which it went to trial and answered appellees' pleading substantially as follows:

(1) By plea to the jurisdiction of the court, asserting that because Rosenbloom was an employé, engaged in interstate commerce, the federal courts alone had jurisdiction.

(2) By general demurrer.

(3) By special exception, pointing out (1) that plaintiffs' petition failed to disclose whether Rosenbloom was engaged in intrastate or interstate commerce; (2) that it failed to show that plaintiff was entitled to sue in the capacity in which she sued; and (3) that it failed to show that death was the natural and proximate result of the alleged negligence.

(4) By general denial.

(5) By special plea, setting up (1) the federal employer's liability act, alleging that Rosenbloom was an employé engaged in interstate commerce so that the federal courts had jurisdiction, and plaintiff had no right to sue in the capacity in which she sues; (2) contributory negligence on the part of M. A. Rosenbloom; and (3) assumed risk and negligent manner in which Rosenbloom conducted himself.

The record shows that certain general demurrers and special exceptions urged by appellees were by the lower court sustained and the rulings excepted to by appellant, and that a general demurrer and certain special exceptions urged by appellant were overruled and the rulings excepted to by appellant, but as the appellant has failed to assign error in this court on any of said rulings, and appellees have briefed their cause as if no such rulings had been made by the court below, on appellant's pleadings, we will dispose of the issues only as raised in and presented by the briefs of the parties, respectively, on the record.

As appellant filed many assignments of error below not urged in its brief, under the rules, we will consider only those urged in its brief, and to avoid confusion, where we refer to an assignment in this opinion, it will be by its number according to its order in the brief.

As appellant's second and third assignments, in a general way, bear on the same question, they will be considered together. Under appellant's second and third assignments, it is contended that the court below committed reversible error in failing to give appellant's special charges Nos. 1 and 13, respectively, as requested, which are as follows: Second assignment: "The trial court erred in refusing to give in charge to the jury special charge No. 1, requested by defendant, which is as follows: `The court charges the jury that plaintiffs are not entitled to recover in the capacity in which they sue herein, and you are therefore instructed to return a verdict for the defendant.'" Third assignment: "The court erred in refusing to give in charge to the jury special charge No. 13, requested by defendant, which is as follows: `If M. A. Rosenbloom at the time of his death was engaged in examining seals and making record of seals on cars being transported interstate over the line of defendant and other lines of connecting carriers, and if such work was a necessary part and customary work, reasonably carried on by defendant as a part of its business, transporting freight interstate over its line, or if he had then just completed such inspection of said train, and had not yet completed his record and placed it in the place where usually kept, then you will return a verdict for the defendant on its special plea that plaintiff has no right to maintain this suit in the capacity in which she sues.'"

As a basis for the disposition we make of these two assignments, and in connection with the disposition we shall make of other assignments, we find that the following facts are established and proven by the record, and that the record contains no other facts tending to show that M. A. Rosenbloom was at any time engaged in interstate commerce, to wit:

(1) Appellant is a railway corporation, owning and...