Rowe v. Colorado & S. R. Co.

• Decision Date: 19 June 1918
• Docket Number: (No. 1376.)
• Citation: 205 S.W. 731
• Parties: ROWE v. COLORADO & S. R. CO. et al.
• Court: Texas Court of Appeals

205 S.W. 731

ROWE v. COLORADO & S. R. CO. et al.

(No. 1376.)

Court of Civil Appeals of Texas. Amarillo.

June 19, 1918.

Rehearing Denied October 9, 1918.

Appeal from District Court, Potter County; Hugh L. Umphres, Judge.

Suit by Ada Rowe, administratrix, against the Colorado & Southern Railroad Company and another. Judgment for defendants, and plaintiff appeals. Reversed and remanded.

L. C. Barrett and J. N. Browning, both of Amarillo, for appellant. E. E. Whitted, of Denver, Colo., Turner & Dooley, of Amarillo, and Thompson, Barwise & Wharton, of Ft. Worth, for appellees.

HALL, J.

Appellant filed this suit against the Colorado & Southern Railroad Company and the Denver City Railway Company, for the benefit of herself and two minor children, seeking to recover damages for the death, on the 15th day of June, 1916, of Edgar Rowe, the husband of appellant. Appellant alleges in substance that on or about the 15th day of June, 1916, Edgar Rowe was in the employ of both the appellees, as a brakeman; that on or about said date he was killed near Des Moines N. M., while en route from Trinidad, Colo., to Texline, Tex. No question is made upon the pleadings, and it is unnecessary to set out here in detail the allegations of either party. Appellees answered, alleging contributory negligence and assumed risk. After the evidence was all introduced, the court directed a verdict for the appellees, and this action is assigned as error.

Appellees insist that appellant's first assignment of error is multifarious, and therefore is not entitled to consideration; but the rule in this court is that the action of the trial court in peremptorily instructing the jury presents fundamental error. From a perusal of the briefs we learn that the trial judge was of the opinion that the maxim res ipsa loquitur does not apply to cases arising under the federal Employers' Liability Act (April 22, 1908, c. 149, 35 Stat. 65 [U. S. Comp. St. 1916, §§ 8657-8665]), in suits between railroad corporations and their employés and further that the evidence of negligence was insufficient to warrant the court in submitting the issue to the jury. It then becomes our duty to review the statement of facts, and if the evidence, taken in its most favorable light to appellant, was such as to authorize men of reasonable minds to conclude that appellees had been guilty of negligence proximately resulting in the death of Edgar Rowe, the judgment should be reversed.

It was shown that Edgar Rowe resided at Trinidad, Colo., and was employed as a freight brakeman by the Colorado Southern Railroad Company, and at the time of his death was performing his duties as such brakeman. He was killed between 9 and 10 o'clock on the night of June 15, 1916. The train upon which he was working was running south from Des Moines, N. M., and as head brakeman he had been ordered to turn up the retainers on the various cars making up his train. The train was composed of about 45 cars, and it was ascertained after the death of Rowe that he had turned up the retainers on several of the cars. The witness H. E. Oakes, who was rear brakeman on the same train, testified that when the train stopped he got out of the caboose and went up the train to find what the trouble was, and found Rowe dead under about the seventh car from the caboose, lying in the middle of the track on his face; that the train had been running about 20 miles an hour; that Rowe had evidently been dragged about 35 feet after he struck the ground; that he found Rowe's lantern, burning and upright, in the southwest corner of what is called the Erie car, which it seems was a coal car loaded with coal at the time, and he further found that the retainer on this car had been turned up and the air hose between the Erie car and the car immediately south of it, which the witness calls the Southwestern car, was uncoupled. He testified that, in order for Rowe to turn up the retainers on these cars, he would have been forced to go on the southwest corner of the car and lean over its edge. He further says that the east bottom door of the Southwestern coal car had dropped down and spilled out about four tons of coal, about where Rowe was killed; that the coal was caused to fall from the car by the bottom door of the car breaking loose; and that the coal was scattered along on the east rail. He further stated: That there was a shaft running through under the car fitted with chains, and by winding the shaft the chains raised and fastened both doors on each side of the bottom of the car. That he found a piece of broken baling wire on the door which was open, and that the door on the west side of the car, and which was still in place, was fastened with baling wire. That the chains on both doors were hanging down loose and had never been wound up. That it was not usual for the doors to be fastened with baling wire. That, when coal falls out of a car under such circumstances, it creates lots of dust, and pieces of coal are thrown in all directions. There were automatic couplers on both of the cars, and that the cars were coupled, but the air hose was uncoupled. Rowe's body was found about five minutes after he was killed.

Rowe was a sober, industrious man. It appears that the two coal cars were picked up by this train at Des Moines, and that turning up retainers on such cars was within the line of Rowe's duties. This witness stated that it was his opinion that the train became uncoupled between the two coal cars mentioned at about the place Rowe was killed, and stated that he based his opinion upon the fact that the hose was uncoupled and not damaged. That it came to a stop at or near the place where Rowe was found dead. That the parting of the hose set all the brakes which caused the train to stop. That the air hose was uncoupled at only one place. That the brakes being set on the front end of the train after it became uncoupled caused it to slow up when the rear portion overtook the front end, causing the couplers to come together and couple automatically. He stated that he found the couplers in good condition after the accident; that the Erie and Southwestern cars were about the twelfth and thirteenth cars from the engine. He explained that there was an air retainer on every car, and when the retainer was turned up it kept the brakes set by holding the air pressure in the brake cylinder; that at or near the place where Rowe was found it was necessary to have air retainers in proper position on account of the grade; and that it had been the custom to turn up the air retainer at that particular place ever since his employment by the road. There was an end platform about a foot wide on the Erie car, but no platform on the Southwestern car. The coal from the car fell on the east rail; some of it going between the two rails, and some of it east of the track.

L. J. Smith testified as an expert for the appellant. The substance of his testimony is: That when the air hose of a train is parted about 13 or 14 cars back of the engine, where there are about 45 cars in the train, it applies the brakes in emergency, and would stop the train, causing it to jar and shake. That, if a man was standing on a car where the brake occurred and between the cars, it would have a jarring effect; and that if about four tons of coal were spilled on the east rail of the track, with the train running about 20 miles an hour, it might have the effect of uncoupling the train and might result in derailing the car. That if it uncoupled the train it would also uncouple the air hose. That trains sometimes uncouple and then couple again. That the air hose might be uncoupled under such circumstances and still not uncouple the train. That the spilling of four tons of coal on the track would raise a dust and would have the effect of blinding a man standing between the cars. If a car is going over an obstruction, it will naturally rise; one car will go up and the other will go down; that has a tendency to uncouple the coupling, and the same effect would be...