San Antonio & A. P. Ry. Co. v. Wagner

• Decision Date: 04 March 1914
• Citation: 166 S.W. 24
• Parties: SAN ANTONIO & A. P. RY. CO. v. WAGNER.<SMALL><SUP>†</SUP></SMALL>
• Court: Texas Court of Appeals

166 S.W. 24

SAN ANTONIO & A. P. RY. CO. v. WAGNER.^†

Court of Civil Appeals of Texas. San Antonio.

March 4, 1914.

On Motion for Rehearing, April 22, 1914.

Appeal from District Court, Bexar County; R. B. Minor, Judge.

Action by William Wagner against the San Antonio & Aransas Pass Railway Company. Judgment for plaintiff, and defendant appeals. Rehearing denied.

Houston, Boyle & Storey, of San Antonio, for appellant. John Sehorn, of San Antonio, for appellee.

FLY, C. J.

Appellee sued to recover damages arising from personal injuries inflicted on him through the negligence of appellant. It was alleged that appellee was a brakeman in the employment of appellant, and, while engaged in coupling a locomotive and car, it became necessary for him to stand on the footboard of the engine, between it and the car, and shove the knuckle of the coupler on the engine so as to put it in position to be coupled to the car, and, while so engaged, he slipped and fell, and his left foot was caught between the couplers and was crushed and mangled, and that he was otherwise seriously, painfully, and permanently injured. It was charged that appellant was negligent in having couplers which would not couple by impact, as required by law, and that such negligence was the direct and proximate cause of appellee's injuries. The evidence developed the fact that appellee was injured, as alleged, through the negligence of appellant in not having its cars properly equipped with couplers that would couple by impact, and prevent the necessity of going between the cars to couple them.

The first assignment of error assails the ruling of the trial judge in sustaining exceptions to that part of appellant's answer which pleaded the federal law as to couplers, and, further, that its couplers had to be adjusted at times in order to be coupled by impact, that the work of adjusting the couplers could have been done with perfect safety if the cars had been standing, but that appellee sought to adjust the coupler when the engine was moving towards the car. The assignment is overruled. If, as contended by appellant, the federal law as to couplers was applicable to this case, appellant was not injured by having the pleading as to that statute stricken out, because the federal and state statutes are practically the same, and all of the issues that could arise under either were submitted to the jury. The federal act of 1893 made it unlawful for railroad companies to haul or permit to be hauled or used on their railroad any car in interstate traffic "not equipped with couplers coupling automatically by impact, and which can be uncoupled without the necessity of men going between the ends of the cars." U. S. Comp. St. 1901, p. 3174. The Texas law (article 6710, Rev. St. 1911) makes it unlawful for any railroad company engaged in intrastate commerce "to haul or permit to be hauled or used on its line of railroad within the state of Texas any locomotive, tender, car or similar vehicle employed in moving intrastate traffic within the said state, which is not equipped with couplers coupling automatically by impact and which can be coupled and uncoupled without the necessity of men going between the ends of locomotives, tenders, cars and similar vehicles." The state law seems to be more comprehensive than the law of Congress, but the decisions of the Supreme Court of the United States have construed the federal statute so as to render it fully as comprehensive as that of the state. The substance of those decisions has been embodied in the Texas statute along with the plain provisions of the federal statute.

As substantiating the statement that the federal decisions have read into the federal statute every provision in the state statute not mentioned in terms in the federal statute, we cite the case of Johnson v. So. Pac. Co., 196 U. S. 1, 25 Sup. Ct. 158, 49 L. Ed. 363, in which it was held that locomotives are embraced in the words "any car" used in the statute, and that the provision of the statute that cars should have couplers "which can be uncoupled without men going between the ends of the cars included coupling as well as uncoupling."

The rejected answer admitted that the couplers were such as required adjustment in order to couple, and that the adjustment had to be made between the cars, and sought to excuse itself on the ground that appellee should not have attempted to make the adjustment while the cars were in motion. The statutes, federal, and state, will not bear the construction that couplers are sufficient that require adjustment by going between the cars. The object of the statutes was to obviate the necessity of men going between cars to couple them, whether moving or standing. To quote the language used in Johnson v. Southern Pacific Company, herein cited: "The object was to protect the lives and limbs of railroad employés by rendering it unnecessary for a man operating the couplers to go between the ends of the cars. * * * The primary object of the act was to promote the public welfare by securing the safety of employés and travelers." If men were required to go between "the ends of cars," whether standing or moving, in order to adjust the couplers, neither the federal nor state law was complied with. They did not act automatically if they required that a man should go between the ends of cars to adjust the couplers before they would act. The couplers on the car and engine had failed to act when brought together, and appellee was injured while trying to adjust the coupler on the engine so that it would couple. Merely putting couplers on the cars did not meet the requirements of the law, but they must be in such condition as to couple by impact. So it was held in the Johnson Case herein cited.

It is insisted by appellant that it was prevented by the answer being stricken out from proving that the engine and car were equipped as required by law, but the statement of facts contains testimony to that effect introduced by appellant. Under the general denial appellant could have shown all that it pleaded in regard to its couplers, and it was permitted to prove all that it offered on the subject.

Under the facts of this case, neither proof of assumed risk nor of contributory negligence offered any defense. The uncontroverted evidence showed that, if the engine had been equipped with a lever by which the coupler could have been adjusted without the necessity of going between it and the car, there would have been no accident. If appellant's answer had been permitted to stand, it could have availed it nothing, for its admissions that it was necessary to go between the cars to adjust the couplers was an admission that it was guilty of a violation of federal and state law, and no plea of contributory negligence or assumed risk could relieve it of liability. Articles 6649 and 6650, Rev. St. 1911; Compiled Stats. U. S. of 1901, p. 3174; Act of Congress April 22, 1908 (U. S. Comp. St. Supp. 1911, p. 1323). Whenever injury or death is caused by a failure to comply with the demands of the safety appliance laws, there is absolutely no defense that can be presented by the railroad company. Railway v. Taylor, 210 U. S. 281, 28 Sup. Ct. 616, 52 L. Ed. 1061; Railway v. United States, 220 U. S. 559, 31 Sup. Ct. 612, 55 L. Ed. 582; Mondou v. Railway, 223 U. S. 1, 32 Sup. Ct. 169, 56 L. Ed. 327, 38 L. R. A. (N. S.) 144; Winfree v. Railway, 227 U. S. 296, 33 Sup. Ct. 273, 57 L. Ed. 518.

There were but two issues in this case, which were submitted to the jury by the court; the first being whether the engine was equipped with such couplers as the law requires, and, if not, was the failure to have it so equipped the proximate cause of the injuries inflicted upon appellee? The court very properly refused to allow other issues, proposed in the special charges requested by appellant, to be interpolated into the case. The only defense that could be presented was that the locomotive was equipped as required by law, and that defense was presented by the court. All of the assignments presenting complaints as to the refusal to give the special charges are overruled.

The evidence of appellee as to the necessity of shoving the drawhead over so as to make the coupling was the statement of a fact, but, if it was an opinion, it was the opinion of one who was qualified as an expert, and it was admissible. Appellee stated that he saw that the drawhead "was shifted way over to my side, and I reached up with my left foot to shift it over so it would couple. * * * If I had not shoved that drawhead over, it would have slipped by and probably have mashed me through here (indicating hips)." None of that testimony was objected to, although it was, in substance, the same as that to which objection was urged, because it showed the necessity for pushing the drawhead. Appellee had been employed as a brakeman by appellant for 13 months, and had worked as a brakeman for 8 years, and was acquainted with the operation of couplers.

A stenographer's report of what witnesses may have testified in other cases could not be used to question the competency of a doctor who testified in the other cases as well as in this. The cases cited by appellant have reference to the stenographer's report of the testimony of a witness, sought to be impeached, on a former trial of the same cause. No decision is submitted holding that the evidence of third parties on a collateral issue in the trial of a different case could be used to impeach a witness in the instant case.

In his closing argument to the jury, appellee's counsel used the following language: "I want this jury to give the plaintiff every cent that it possibly can, under the pleadings and evidence. You cannot make a mistake in giving him too much, under the evidence. If you do, the court has the power, and it is his duty, to cut it down; but, if you make it too low, even if your verdict should be for $5, there is no power in this court to add...