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

• Decision Date: 30 October 1901
• Citation: 65 S.W. 210
• Parties: SAN ANTONIO & A. P. RY. CO. v. WALLER et al.<SMALL><SUP>1</SUP></SMALL>
• Court: Texas Court of Appeals

65 S.W. 210

SAN ANTONIO & A. P. RY. CO. v. WALLER et al.¹

Court of Civil Appeals of Texas.

October 30, 1901.

Appeal from district court, Bexar county; S. J. Brooks, Judge.

Action by Hortense E. Waller and others against the San Antonio & Aransas Pass Railway Company. From a judgment in favor of plaintiffs, defendant appeals. Conditionally affirmed.

Houston Bros. and R. J. Boyle, for appellant. Price, Green & Green and Lewy & Sehorn, for appellees.

NEILL, J.

This suit was brought by Hortense E. and Gladys M. Waller, wife and child, and Wm. A. Waller and Mary V. Waller, mother and father, of A. R. Waller, deceased, against the railroad company, to recover damages occasioned by his death, alleged to have been caused by the negligence of appellant. The trial of the cause resulted in a judgment in favor of appellees Hortense and Gladys Waller for $20,000 ($10,000 to each), and in favor of appellant company as against deceased's father and mother. From this judgment the railroad company has appealed.

Conclusions of Fact.

On the 31st day of July, 1899, A. R. Waller, the husband of Hortense and father of Gladys, was in the employment of appellant company as a brakeman, and while in the pursuance of his employment it became his duty at Kennedy, a station on appellant's road, to assist an engineer operating one of appellant's engines in moving a car from a side track, known as the "stock track," to the main track of the railroad. In the discharge of this duty he threw the switch connecting the main track with the stock track so that the engine might pass thereon and be coupled to a car to be moved to the main track. After the switch was thrown, and the engine was passing it, going from the main track on to the stock track, Waller, in pursuance of his duty, stepped upon the pilot blade of the engine for the purpose of riding thereon to and coupling it to the car desired to be moved. Immediately thereafter, in consequence of defects in the switch and track existing by reason of the negligence of appellant, and which were unknown to Waller, the engine was suddenly jolted and jarred so as to cause him to lose his footing, and slip and fall from the pilot in front of the engine, whereby he was drawn under and dragged by said engine, and thereby so injured as to cause his death. The defects in the switch and stock track, the existence of which was caused by the negligence of appellant, as aforesaid, which caused the jolt and jar of the engine, which threw or caused deceased to fall from the pilot, were as follows: (1) The end of the rails of the stock track and those across the switch block were improperly aligned, so they did not come together straight,—the slide rail on the right-hand side of the switch projecting about half an inch beyond the line of the stationary rail, which caused what is termed a "lip" on the side rail; i. e. the wheels of the cars in passing over the switch by striking the projecting end of the slide rail wore the ball (the top of the rail) off about half an inch, and extending back about six inches. This wearing off of the rail is what is known as a "lip." (2) the outer rail of the stock track was too low, causing it to dip. (3) The space between the ends of the rails was too much, it being three or four inches, and was such as to cause an engine moving over it to drop. The pilot blade of an engine is, according to the testimony in this case, the usual and proper place for a switchman to ride while in the performance of such duties as were required of Waller at the time he undertook to ride thereon, and would be a perfectly safe place for one exercising ordinary care, if the switch and track were properly constructed and maintained free from defects. Waller, at the time he lost his footing and slipped from the pilot blade, was in the exercise of ordinary care, and guilty of no negligence proximately contributing to his death; but his death was caused by said negligence of appellant in permitting the defects in its switch and track as before stated. At the time of his death Waller was 29 years old. Prior thereto he was an able-bodied man, working as a brakeman for appellant company, and his average earnings were between $70 and $75 per month. His individual expenses amounted to about $6 or $7 per month. With the exception of this, he turned all of his earnings over to his wife, all of which it took to support her and his child and keep up their home. Hortense was 23 years old last May, and Gladys, deceased's daughter, was 4 years old in March.

Conclusions of Law.

1. The court did not err in submitting in its charge the question as to whether the deceased was jolted or jarred off the pilot of the engine. That such a jolt or jar occurred by reason of the defects in the switch and side track, which caused deceased to lose his footing, and fall from the pilot, was specifically alleged, and abundantly established by the evidence. The testimony is overwhelmingly to the effect that such defects would necessarily jolt and jar an engine in passing over the part of the track affected by them. It is undenied that deceased lost his footing and fell there. His fall was the effect of some cause, and, it being shown that the engine could not pass over without a jolt or jar, it was a legitimate inquiry as to whether his fall was the effect caused by such jolt or jar.

2. In cases of this character we regard it as settled law in this state that "one who enters the service of a railroad company assumes the risks ordinarily incident to his work; but he does not assume any risk arising by reason of the company's negligence, unless he knows it, or in the ordinary discharge of his duty must necessarily have acquired such knowledge." Railway Co. v. Hannig, 91 Tex. 351, 43 S. W. 508; Railway Co. v. Bingle, 91 Tex. 287, 42 S. W. 971...