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

• Court: Texas Court of Appeals
• Writing for the Court: Huff
• Citation: Pecos & N. T. Ry. Co. v. Winkler, 179 S.W. 691 (Tex. App. 1915)
• Decision Date: 26 October 1915
• Docket Number: (No. 819.)
• Parties: PECOS & N. T. RY. CO. et al. v. WINKLER.

Page 691

179 S.W. 691

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

(No. 819.)

Court of Civil Appeals of Texas. Amarillo.

October 26, 1915.

Appeal from District Court, Potter County; J. N. Browning, Judge.

Action by Frank Winkler against the Pecos & Northern Texas Railway Company and others. From a judgment for plaintiff, defendants appeal. Reversed and remanded.

Terry, Cavin & Mills, of Galveston, and Madden, Trulove, Ryburn & Pipkin, of Amarillo, for appellants. J. H. Synnott, of Dallas, and R. E. Underwood, of Amarillo, for appellee.

HUFF, C. J.

Winkler sued appellants, railway companies, for damages occasioned by injuries received by him, alleged to have been inflicted on him while in the employment of appellants, on the 2d day of April, 1913, in and about the switchyards of appellants in Amarillo. The jury returned a verdict in his favor for $6,000.

The negligence alleged is as follows:

"That about the 1st day of April, 1913, the defendants, their agents and servants, negligently dug, bored, and excavated a large and deep hole about 12 inches in diameter and about 16 inches deep near the center of said yards and plaintiff's aforesaid place of work, between the end of two ties and just on the outside and right against the rail of one of the said many tracks or switches over which it was plaintiff's duty, as aforesaid, to assist in the operation of defendants' trains, and thereafter negligently and carelessly allowed and permitted said hole to remain and refused to fill, close, or remove the same during the entire day of April 2, 1913."

He further alleged, while performing his duty, he stepped into the hole above set out and fell in front of a train of cars being switched, which ran over and injured him; that the train of cars was being switched on track No. 4, to be coupled onto other cars standing on said track, and that he rode on the north front car of the train, which was being switched, for the purpose of making the coupling; that the knuckle of the front car was defective, in that, when the pin was raised, the knuckle would not open as the car approached the stationary cars, the knuckle remained closed, and in order to make the coupling it was necessary that the knuckle on said car should be opened by hand, and it was his duty, under such circumstances, to descend from the moving car and overtake the knuckle and open the same before it came in contact with the standing cars, and as the moving cars came near the hole, and after appellee had endeavored to open the knuckle with the lever of the coupling, and could not do so, he descended from the car and stepped ahead of same and between the rails to open the knuckle, and as he turned around the end of the car for the purpose of stepping between the rails ahead of the moving car, his foot slipped and slid into said hole, which caused him to fall in front of the car and between the rails; and that he was thereby injured, etc.

The defendants denied specifically the acts of negligence set out, and that the accident was not due to any negligence upon the part of the defendants in the particulars alleged, but was due to the negligence of appellee in going in front of the car, when there was no necessity or duty requiring him to do so, pleading contributory negligence, assumed risk, etc.

The trial court submitted to the jury whether the appellants were negligent in digging a hole at the place it did and whether it was negligent in leaving it there unfilled and level, and whether such negligence was the proximate cause of appellee's injury. The evidence will authorize the inference that some engine at some time previous to appellee's fall stopped at the point where the hole was, and that it was made by water from the overflow pipe attached to the engine, and that the hole was something near the size described in the petition; that it had been made previous to the day on which appellee was injured, and left in that condition, rendering it dangerous and unsafe for employés required to work in the yards switching cars and trains. It will authorize the inference also that the employé whose duty it was to keep clear the track at that point either saw the hole the morning previous to the fall, and negligently failed to fill it, as was his duty, or that he negligently failed to discover it, which he could have done by proper care, and will authorize the inference that appellee stepped in this hole, and that it caused him to fall in front of the cars, and that some three or four passed over him, dragging him and injuring him in several portions of his body, as alleged, and that this was negligence on the part of appellants which proximately caused the injury to appellee. We therefore would not, under the facts of this case, be warranted in finding that there was no evidence, as a matter of law, warranting the jury to find that appellants negligently failed to provide a reasonably safe place in which for appellee to work. M., K. & T. Ry. Co. v. Wise (Civ. App.) 106 S. W. 465. This case was affirmed by the Supreme Court, 101 Tex. 459, 109 S. W. 112; Railway Co. v. Manns, 37 Tex. Civ. App. 356, 84 S. W. 254; Railway Co. v. Toliver, 37 Tex. Civ. App. 437, 84 S. W. 376; Railway Co. v. Redeker, 67 Tex. 181, 2 S. W. 513. Without stating our conclusion of the facts, we do not feel authorized to say there were no facts which would authorize an inference by the jury that appellee was not guilty of contributory negligence. Railway Co. v. Adams, 94 Tex. 100, 58 S. W. 831; Railway Co. v. Smith (Civ. App.) 101 S. W. 453.

The appellee made a written application for employment with the appellants, in which it is stated, if he should be injured while in the employment, that he would in 30 days after such injury give notice in writing of any claim for damages to the claim agent or general claim agent of appellants, and that a failure to give such written notice of such claim within 30 days should be a bar to the institution of any suit on account of such injury. This clause was set up as a bar to appellee's cause of action by the appellants. The facts in this case show that in less than a week after the injury appellant's claim agent called on appellee for a statement, which he gave to the agent. This statement was reduced to writing, and appellee signed it, and was referred to by the evidence in this case.

The trial court, at the request of the appellants, submitted to the jury whether the above provision contained in appellee's application was reasonable, and whether the notice stipulated for had been waived by appellants. The jury evidently found it was unreasonable or had been waived. We believe the fact that appellants obtained the statement of the claim of appellee in writing within a week after the injury would authorize the finding that the appellants had waived the giving of notice stipulated for. Railway Co. v. Hendricks, 49 Tex. Civ. App. 314, 108 S. W. 745. We do not believe, under our statutes, appellants could defeat the claim for damages occasioned by personal injuries by stipulating that notice thereof must be given within 30 days after such injury. Article 5714, R. C. S.; Railway Co. v. Hudgins (Civ. App.) 127 S. W. 1184.

For the reasons above expressed, we do not believe the trial court was in error in refusing appellee's special requested peremptory instructions, and the assignments Nos. 1, 2, 3, and 4, together with the propositions thereunder, will be overruled.

The fifth assignment of error will be overruled. Taking the second and sixth paragraphs of the court's charge together, we think the jury was sufficiently instructed as to the facts required to be proven by appellee by a preponderance of the evidence, and that the burden was on him to so establish such facts. The sixth assignment complains that the fourth paragraph of the court's charge is erroneous. The court instructed that the duty was on appellants to furnish appellee a reasonably safe place to occupy while in the discharge of his duties as switchman and use ordinary care to keep its railway tracks and sufficient space of ground adjacent to it clear of holes and excavations, which would likely interfere with the switchman in the discharge of his duty; that there was no duty on the switchman to inspect the premises where he was expected to work. The court did not instruct the jury that appellee "was not required to use any care to discover the presence of any hole," etc., as asserted by appellants in their proposition. The trial court did instruct that he was required to use ordinary care and prudence to avoid injury to himself. The objection taken to the charge is not sound. The charge of the court is substantially the language used by the Supreme Court in several cases, except the jury were not charged thereby that "he does not assume the risk arising from the failure of the master to do his duty, unless he knows of the failure and the attendant risk, or in the ordinary discharge of his own duty must necessarily have acquired knowledge." The appellants do not except to the charge because of this omission by the court. However, in the eighth paragraph of the court's charge this omission, if there was any error in omitting it, was covered, and no injury could have resulted to appellants thereby. Bonnell v. Railway Co., 89 Tex. 72, 33 S. W. 334; Railway Co. v. Hannig, 91 Tex. 347, 43 S. W. 508; American Machinery Co. v. Haley (Civ. App.) 165 S. W. 83.

The seventh, eighth, and ninth assignments assail the sixth paragraph of the court's charge, on the ground that it assumes appellee exercised ordinary care in trying to make the coupling and ignores contributory negligence, or that it assumes the hole caused appellee to fall. We will not set out the charge or discuss these assignments further than to say we do not think the charge assumes any of the facts, but leaves to the jury the duty of finding the facts. We do not regard the charge as being on the weight of the evidence.

The...