Rea v. St. Louis Southwestern Ry. Co. of Texas

• Decision Date: 04 March 1903
• Citation: 73 S.W. 555
• Parties: REA v. ST. LOUIS SOUTHWESTERN RY. CO. OF TEXAS.<SMALL><SUP>*</SUP></SMALL>
• Court: Texas Court of Appeals

73 S.W. 555

REA v. ST. LOUIS SOUTHWESTERN RY. CO. OF TEXAS.^*

Court of Civil Appeals of Texas.

March 4, 1903.

Appeal from District Court, Grayson County; Rice Maxey, Judge.

Action by J. W. Rea against the St. Louis Southwestern Railway Company of Texas. From a judgment for defendant, plaintiff appeals. Reversed.

Randell, Word & Hassell, for appellant. E. B. Perkins and Head & Dillard, for appellee.

JAMES, C. J.

Plaintiff, Rea, was injured while between the engine and the car next to it, chaining the couplings. The occasion of his injury was the backing into the rear end of the train by engine and cars doing switchwork, which forced the cars he was between to come together. In his petition, plaintiff alleges negligence: "(1) In the fact that said locomotive and cars struck the rear end of the train upon which he was working with great force and violence, being propelled with great and unusual speed against the rear end of the train upon which he was working. (2) In the negligence of his foreman in not keeping a proper lookout for plaintiff's safety while so engaged between the cars; in the negligence of defendant in not having the brakes set on the cars composing said train, and in not having the cars provided with buffers and chafing irons."

The court submitted the case on the first of the above-named issues, only, and refused the charge which is copied below: "If you believe from the evidence that the plaintiff, while in the employment of the defendant, in the exercise of his duties under such employment, was engaged in inspecting a train of defendant at Texarkana, Texas, at the time alleged in his petition, and securing and adjusting the couplings and coupling attachments thereof; and if you believe that the defendant, in the exercise of ordinary care for the safety of plaintiff and its other employés engaged in work of the same nature, should have, in making up said train, set or caused to be set the brakes on each car thereof before attaching any other car thereto, and that defendant failed to set said brakes or have the same set in this manner, and by reason of such failure plaintiff was injured as alleged in his petition; and if you further believe that the plaintiff was exercising such care for his own safety as a man of ordinary prudence would have exercised under the same or similar circumstances—then you will find for the plaintiff, and assess his damages as directed in the main charge." The only justification that we can conceive for not giving such charge, or one submitting the case on the theory indicated thereby, is that the testimony did not warrant it.

It appears that the train thus being made up was a north-bound train. In such a case, when the train arrived from the south, the engine was taken off, and some of the cars laid out. A north-end engine was attached to such of the cars of the original train as were to go on. Plaintiff's duties and relations as to such train were described by him substantially as follows: "As the train comes into the station, I generally take the numbers of the cars. After I take the numbers, I start at the rear end and inspect the cars that go through, and when I get as far as the engine (the engine that brought in the cars is gone) I couple the engine (that is, to take the train out, so they can use the air), and then I go back and do the repairing. When I was hurt the air was not set on the cars. If the air had been set on the cars when the engine came against them, they would not have moved hardly at all. It would have taken a very heavy force to move them at all. The switchmen are supposed to set the air every time they couple a car while we are at work. I thought the air was set on that day when I went in between the cars. I had nothing to do with setting the air. When I went in between the engine and car I supposed the switching was over with."

It was an established fact that the air was not set and the brakes were not against the wheels of the cars; and, in our opinion, the question of whether or not the issue should have been submitted is reduced to, and depends on, the fact whether or not plaintiff, when he went into the place where he received his injury, knew the brakes had not been set. If he knew this fact, or necessarily must have known it in the prosecution of his work, then he assumed the risk of the danger attending the failure to set them, and in that case it would not be necessary to submit the issue. The evidence tends very strongly to show that he knew the fact. He testified that he did not know it, and thought the brakes had been set. He, however, in the course of his evidence, said: "In inspecting I examined the running gear of the cars—the drawheads and wheels and all underpart of the car. I looked at the wheels, the journal boxes, and the brake shoes. I looked to see whether the brake shoes were working close and fast, or not, and to see if they were worn out. I looked at the brake shoes on this occasion. The brake shoe is a curved piece of iron which fits up against the wheel to prevent it from turning. I made an inspection such as I have indicated of the...