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

• Citation: 180 S.W. 1194
• Decision Date: 01 December 1915
• Docket Number: (No. 5535.)
• Parties: SAN ANTONIO & A. P. RY. CO. v. LITTLETON.
• Court: Texas Court of Appeals

180 S.W. 1194

SAN ANTONIO & A. P. RY. CO. v. LITTLETON.

(No. 5535.)

Court of Civil Appeals of Texas. San Antonio.

December 1, 1915.

Rehearing Denied December 24, 1915.

Appeal from District Court, Karnes County; F. G. Chambliss, Judge.

Action by Roxie Ethel Littleton, as administratrix and personal representative of the estate of J. B. Littleton, deceased, against the San Antonio & Aransas Pass Railway Company. From a judgment for plaintiff, awarding damages to her individually and for the use and benefit of her children, defendant appeals. Reformed and affirmed.

Williamson & Klingeman, of Karnes City, J. L. Browne, of San Antonio, and Proctor, Vandenberge, Crain & Mitchell, of Victoria, for appellant. John W. Thames, of Kenedy, and Sam D. Snodgrass, of Temple, for appellee.

CARL, J.

Roxie Ethel Littleton, as administratrix and personal representative of the estate of J. B. Littleton, deceased, sued the San Antonio & Aransas Pass Railway Company for damages on account of the death of her husband, J. B. Littleton, while repairing a car in appellant's switchyard at Kenedy, Tex. The petition also alleges that she is the surviving wife of deceased, and that Stanley B. Littleton, age 11, Mae Ella Littleton, age 7, and Theresa Littleton, age 3, are the only children of the said J. B. Littleton, deceased, and that his father and mother both died before the said J. B. Littleton was killed, and she sues for herself and for the use and benefit of the children; that appellant maintained at Kenedy repair shops, roundhouse, shopyards, and tracks where "bad order" cars were repaired; that among other tracks there maintained are what are known as "rip tracks," which were regularly used in the repair of "bad order" cars, and where the railway's employés were placed to work in such repairing. At Kenedy the railway branches, one line going to Corpus Christi and the other going east to Houston and other points. Between the Corpus Christi and Houston lines is a connecting switch which goes from the Corpus Christi prong of the Y to the Houston branch, and this is south of where the two lines branch and south of the depot, roundhouse, and repair tracks. The "rip tracks" and roundhouse tracks are connected with this line which connects the two branches by switches, and the track upon which deceased was working is equipped with a derailing device. The car upon which he was working, however, was outside or south of the derail at the time of the injury.

A switch engine used in the yards had gone out onto the Corpus Christi main line and gotten a string of empty cars. The engine was south of the cars, and the purpose was to "kick" these cars, or give them such a start that when released from the engine they would run over the connecting switch onto the Houston main line. The switch where the engine had gone out was either left open or was opened by some one, so that when these cars were "kicked" they ran into the "rip track," where deceased had jacked up a car and was inserting or fixing a bolt, and propelled that car over him, and he was killed. It is alleged that no warning was given him and that the cars were "kicked" at a high and unnecessary rate of speed and force; that before he began work on the car deceased placed a blue flag on display near the south end of the car that stood on the "rip track," between where he was working and the switch, which was a signal or notice to those operating the engine that he was working under or about the car or cars on that track.

Negligence is charged by reason of the "kicking" of said cars at a high and unnecessary rate of speed, in failing to ascertain if the switch was open or in leaving same open, and in failing to provide and keep locked a derailing device for the protection of employés working on that track; and that the derail north of this car was no protection to deceased, because the car upon which he was working was between it and the switch where the empty cars came in. Further, that the switch which controlled the repair track was defective and insufficient, in that it was not provided with a private lock, and that fact, together with a failure to inspect the switch at the time to ascertain if it was closed or open, is charged as negligence. It is also charged that defendant violated its own rules by disregarding the blue flag which was up on said "rip track" as a warning that employés were at work on said track; and that the company failed to provide deceased with a safe place to work; and all such alleged acts of negligence are charged to have been the direct and proximate cause of the injury.

Defendant denied all the material allegations, pleaded that the track where the injury occurred was equipped with a derailing device as required by law; that Littleton knew said track was so equipped, but voluntarily engaged in work on a car outside of the derail and thereby assumed the risk incident to working outside of same; that prior thereto defendant had promulgated a rule for the government of its employés in repairing cars, as follows:

"That no employé shall perform work or engage in labor on any car standing on the repair track outside of and unprotected by derailing devices."

Further, that deceased directed the placing of the car where it was and voluntarily and against instructions engaged in work on the same by reason of which he assumed the risk.

It may be said that defendant filed a special plea in the form of various exceptions to the plaintiff's right to sue in a representative capacity, and did not show by the petition that the car upon which he was working was being used in interstate commerce, and that the suit was brought under the Act of April 22, 1908, § 9, as amended April 5, 1910, of the Federal Employers' Liability Act (chapter 143, 36 Stat. 291, § 2); but in the order overruling such exceptions the court says that plaintiff stated that the suit was brought under the state statute, and that no recovery or liability was claimed under the federal Liability Act.

The verdict and judgment were for $8,000 for Mrs. Littleton and $4,000 each for the three children.

There is no pleading that the car upon which Littleton was working was being used in interstate commerce, nor is there any plea that deceased was guilty of contributory negligence. The exceptions to the petition are, largely, because it does not show that claim is made under the federal act, and because plaintiff cannot sue in a representative capacity under state statute.

It must be kept in mind that paragraph 3 of the amended petition, upon which the case was tried, is:

"Plaintiff files this suit for the use and benefit of herself and for the use and benefit of the children above named and mentioned."

The first assignment of error complains that the court refused to give a specially requested charge, grouping the facts, on contributory negligence. The main charge did contain a general charge on contributory negligence. But defendant below did not plead contributory negligence, and it was therefore not an issue in the case.

"Unless plaintiff's petition makes him prima facie guilty of contributory negligence as a matter of law, or unless the undisputed evidence shows contributory negligence as a matter of law, the defendant, to make out that defense, must allege and prove the act or acts relied on as constituting such negligence." S. A. & A. P. Ry. Co. v. Belt (Civ. App.) 46 S. W. 374, 33 L. R. A. (N. S.) 1208, note; H. & T. C. Ry. Co. v. Harris, 103 Tex. 424, 128 S. W. 897; Lewis v. Railway Co., 57 Tex. Civ. App. 585, 122 S. W. 605.

Contributory negligence was not shown as a matter of law, and it therefore was necessary for same to be alleged and proved in order for it to be available as a defense. The appellant not having pleaded this defense, the court was not required to give any charge at all on that matter, and appellant could not have been injured by the giving of the general charge on that subject. The assignment is overruled. Railway Co. v. Harris, 95 Tex. 346, 67 S. W. 315; M., K. & T. Ry. Co. v. Jones, 35 Tex. Civ. App. 584, 80 S. W. 852; G., H. & S. A. Ry. Co. v. Roemer (Civ. App.) 173 S. W. 230.

The second assignment deals with substantially the same matter as the first, and is overruled.

If by the third assignment it is intended to complain because the court did not give that charge as pertaining to contributory negligence, we have seen that contributory negligence was not pleaded as a defense, and therefore no charge was called for. If, on the other hand, it was intended as a charge on assumed risk, the court gave the defendant's requested special charge No. 3 on that subject defining what assumed risk is. For that matter, it is very doubtful if assumed risk is in the case at all, because neither pleadings nor proof show that Littleton knew the switch was open or that the cars were coming down that "rip track." And before a risk may be assumed, there must be knowledge that the danger is there. The mere fact that he went to work on a car outside the derail does not ipso facto show that there was danger there such as resulted in his death; for the real danger was in the open switch and the company's negligence was in permitting it to be open and in propelling the cars down there without knowing that they would not be run in where these men were working. He may have been guilty of contributory negligence, out the court did charge on that, although not pleaded as a defense. Even if a charge on assumed risk was called for, the one submitted was correctly refused because it made the whole case depend on whether Littleton knew the car upon which he was working was outside the derail, had disregarded his foreman's instructions in so working there, or voluntarily engaged in work outside where he was told to work, that there was danger there, that such danger was or could have been known to him, and a person of ordinary prudence would not have attempted to repair the car under all...