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

• Court: Texas Court of Appeals
• Writing for the Court: Huff
• Citation: Pecos & N. T. Ry. Co. v. Finklea, 155 S.W. 612 (Tex. App. 1913)
• Decision Date: 01 March 1913
• Parties: PECOS & N. T. RY. CO. v. FINKLEA.

155 S.W. 612

PECOS & N. T. RY. CO. v. FINKLEA.

Court of Civil Appeals of Texas. Amarillo.

March 1, 1913.

Rehearing Denied March 29, 1913.

COPYRIGHT MATERIAL OMITTED

Appeal from District Court, Randall County; Jno. W. Veale, Special Judge.

Action by Mrs. A. N. Finklea against the Pecos & Northern Texas Railway Company. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

Terry, Cavin & Mills, of Galveston, W. J. Flesher, of Canyon, and Madden, Trulove & Kimbrough and F. M. Ryburn, all of Amarillo, for appellant. Cooper, Merrill & Lumpkin, of Amarillo, for appellee.

HUFF, C. J.

The appellee, Mrs. A. N. Finklea, sued the appellant, the Pecos & Northern Texas Railway Company, in the district court of Randall county to recover damages alleged to have resulted from the negligent killing of her son, R. H. Finklea, while employed by appellant as brakeman on one of its freight trains. A trial resulted in a verdict by the jury and judgment thereon in favor of the appellee for the sum of $5,500, from which judgment appellant brings the case to this court. The grounds of negligence set up by appellee in her petition are substantially as follows, which we take from appellee's brief: First, it is alleged that appellant failed to discharge its duty toward deceased in furnishing him a safe place to work. That there was scattered along the sides of the track of appellant company, at the point behind where the deceased, in the performance of his duty, undertook to board the train, a number of boulders, rocks, and chunks of gyp, and that there was across the pathway of the deceased, at the point where he undertook to board the car, a certain ditch or pit. Second, that the appellant company failed to have stationed, on the rear part of the train which caused the death of the deceased, a competent person to see and give orders and signals with reference to the running of said train, as was its duty to have done.

The appellant answered as follows, which we also take from appellee's statement: "Appellant pleads both contributory negligence and assumed risk on the part of the deceased, and in this connection it was alleged: (a) That the deceased knew the nature of the ground and was familiar with the existing circumstances at the time he undertook to board the train. (b) That, so seeing and knowing such condition, he undertook to board the moving train, contrary to the rules and through idle curiosity or some other purpose of his own, and not in line of his duties, while heavily clothed and wrapped and while holding in his gloved hands a flag and flagstaff, which was liable to cause, and did cause, his hold on the grabirons to break. (c) That he got hold of said grabirons in a negligent manner at the front end instead of at the rear end of the coach. (d) That his duties required him to remain on the ground flagging trains, but that, in disregard of such duty, he attempted to board the train under circumstances which rendered such act on his part an abandonment of his post of duty."

The deceased, Finklea, was killed by preferred extra 411 on the morning of February 14, 1912, near a switch stand at a small station or switch, known as Zita, a few miles south of Amarillo, or west, as it is known in railroad vernacular. He was working with work train 0246, as brakeman, at which work he had been engaged for some time previous to his death. The train with which he was at work hauled gyp, dirt, and gravel, placing the same on the track as ballast. On this day his train was at work on the main line between the head blocks of the switch, east and west of his train. His conductor, Clarke, had instructions to protect his train against all trains except Nos. 27 and 113. Upon arriving at Zita, Clarke instructed Finklea to go east and upon the east switch flag trains coming from Amarillo, and informed the trainmen that the crew of 0246 would take care of the switches and to pass through the switches, using the siding as a main line, and also directed his other brakeman to go west and open the west switch and then return and assist in spotting cars. Finklea flagged No. 411 upon its arrival, and, as it slowed down, boarded the engine and told the engineer he was flagging for work extra 0246, and that he was going to head him through the passing track; the switches being open on both ends in order to save delay on the local. He told the engineer to highball the switches, and that he would take care of them. He got down off the engine, and, as the way car reached him, attempted to board it, taking hold of the irons with both hands, took four or five steps, when his feet went under the car and he fell instantaneously; the car ran over and killed him. The way car used by 411 was a combination baggage and passenger coach, which had been so used for some time. It was not constructed as cabooses are with a cupola, which was usually used on freight trains. It was proven that it was the rule of the company that on freight trains passing switches, such as Zita, the rear brakeman or conductor should be stationed on top of the rear car. On this occasion neither was so stationed. The brakeman, Craig, was near the front of the way car in the baggage department, looking out at the door. The evidence is silent as to whether Finklea saw him until he started to fall. The conductor was inside the car. It is also shown that by the rules the rear brakeman must close the switches after his train is through, and that he would do so unless some responsible person was at the switch in charge of it. The testimony is conflicting as to whether it was the duty of Finklea, after notifying the engineer, to also notify the conductor, and also whether it was necessary to do so by word of mouth or by signal, and whether, under the then circumstances, he could give the order by signal. The testimony is also conflicting as to the condition of the ground at the point of Finklea's fall. Under the disposition we shall make of the case, we think the above is a sufficient statement of the facts to an understanding of the questions discussed. The appellant requested the trial court to instruct a verdict for it and presents a number of assignments to the action of the court in refusing such charge, and also assigns error upon the action of the court in overruling its motions for new trial, because the evidence is not sufficient to support the verdict. The assignments, from 1 to 7, inclusive, present the acts complained of in refusing charge No. 1 and in overruling the motion for new trial, as above stated. After a careful examination of the testimony and the record, we have concluded there was testimony supporting the verdict, and we therefore overrule the assignment. It is contended that the deceased, at the time of his death, was not engaged in work in the line of his duty and was at that time performing acts outside of the scope of his employment. There is much conflict of evidence on this point, with reference to his duty. We think, without discussing the evidence, there was sufficient to warrant the court in submitting to the jury whether Finklea was killed while in the discharge of his duty and while acting within the scope of his employment and in whether or not he was a mere volunteer. The court properly submitted the question to the jury for their findings. Lipscomb v. Railway, 95 Tex. 5, 19, 20, 64 S. W. 923, 55 L. R. A. 869, 93 Am. St. Rep. 804; Labatt on Master and Servant, vol. 2, § 534. It is contended, also, that there is no evidence authorizing the jury to find negligence on the part of the appellant in failing to furnish Finklea a safe place in which to work. The testimony on this point is sharply conflicting, and was, we think, an issue to be submitted to the jury.

It is true the appellant was at that time putting ballast on the track and it was in course of construction. These facts were proper for the consideration of the jury in determining whether appellant used ordinary care under the then conditions. Railway Co. v. Redeker, 67 Tex. 181, 2 S. W. 513; Railroad Co. v. Pitts, 42 S. W. 255; Railway Co. v. Alexander, 102 Tex. 497, 119 S. W. 1135.

It is insisted by appellant that it was only required to use such care as a man of ordinary prudence would use in such work. In the case of Railway Company v. Alexander, supra, Judge Brown said: "In making this assertion, counsel has overlooked the fact that the same degree of care does not necessarily imply the same quantum of diligence to be used. In some instances ordinary care requires the exercise of great diligence, while in other cases the exercise of the same degree of care demands but slight diligence." In this case the jury could have inferred that, had appellant used that diligence required, the gyp clods or rocks and the depression would not have been left at the point near this switch where Finklea and others would likely board or alight from trains, and that appellant would have anticipated, and by the exercise of diligence would have removed the danger therefrom. If the jury, from the facts submitted to them, found that appellant was negligent in the particulars stated, then appellee was entitled to recover.

Under the law, as it now exists, he assumed only the ordinary risk incident to his employment; and even had he known of the condition of the road at that time and place, or if its condition was open and obvious to him, a continuance of his service would not defeat the right of recovery under the rule of assumed risk. As we understand the law, since the Employers' Act, passed by the Twenty-Ninth Legislature, he was not required to refuse to continue his employment, if under like conditions an ordinarily prudent person would have continued in the work. It was therefore a question for the jury. Railway Co. v. Mathis, 101 Tex. 342, 107 S. W. 530; Railway Co. v. Alexander, 102 Tex. 497, 119 S. W. 1135; Railway Co. v. De Bord, 146 S. W. 667.

It is urged that there is no testimony...