Schaff v. Morris

• Decision Date: 11 December 1920
• Docket Number: (No. 8411.)
• Citation: 227 S.W. 199
• Parties: SCHAFF v. MORRIS.
• Court: Texas Court of Appeals

227 S.W. 199

SCHAFF v. MORRIS.

(No. 8411.)

Court of Civil Appeals of Texas. Dallas.

December 11, 1920.

Rehearing Denied January 22, 1921.

Appeal from District Court, Wood County; J. R. Warner, Judge.

Action by Mrs. Sarah Morris, administratrix, against C. E. Schaff, receiver of the Missouri, Kansas & Texas Railway Company of Texas. From a judgment for plaintiff, defendant appeals. Affirmed.

Chas. C. Huff and J. M. Chambers, both of Dallas, and Dinsmore, McMahan & Dinsmore, of Greenville, for appellant.

Johnson, Edwards & Hughes, of Tyler, for appellee.

HAMILTON, J.

This is a suit against appellant by appellee for the recovery of damages resulting from the killing of her husband, Guy H. Morris, who was killed while working as a brakeman in appellant's service.

On October 3, 1917, appellant, receiver of the Missouri, Kansas & Texas Railway Company of Texas, contracted in writing with T. H. Shortall for making fills upon the roadbed of the railroad adjacent to the ends of a certain bridge on a branch road extending from Greenville to Mineola. Among the provisions of the contract was one to the effect that appellant should supply the contractor for use on the work certain units of a work train, including an engine, dump cars, and spreader, for which the contractor should pay stipulated rental amounts, and that the work train and engine should be operated on the work by the men then employed by the receiver for that purpose, the contractor binding himself to reimburse appellant for wages paid them for their labor done in connection with the performance of the contract.

The train in use at the time of the occurrence upon which this suit is based consisted of four Oliver dump cars, two Western dump cars, a spreader, a locomotive and a caboose. The road at the place of the occurrence ran north and south. The caboose was at the extreme south end of the train, and was coupled to the locomotive, which was headed north, and which was coupled to the spreader, which in turn was coupled to one of the Western dump cars north of it, then came the other Western dump car in the formation of the train, and north of it were the four Oliver dump cars, completing the work train.

The train thus formed had been run out on the road on November 3, 1917, to the place where the contractor Shortall had engaged with appellant to make the fills, the dump cars having been loaded with dirt to be dumped. The train was operated exclusively by appellant's train crew under the direction of J. E. Ninski, Shortall's foreman. On the above-named date the train was stopped in a position where the one of the two Western dump cars farthest from the engine (the other and the spreader intervening between it and the engine) stood with its north end extending about to the abutment of the bridge, which projected at right angles several feet from the rails on the sides. Here this car was dumped by gravity, and its load poured out on the east side of the track.

The car was so constructed that its bottom or floor set on pivots or supports hinged along its center, the lower ends of the pivots resting on a beam built on the trucks, the body of the car being fastened to the truck frames with four chains, one at each of its corners, which held it fast in a horizontal position when carrying dirt. When it was dumped at the time above indicated the chains on the west side were released and the load, being heavier on the east side, bore the bottom of the car down and away from the side, which seems to have remained stationary, with the exception that, by the movement of cross-arms joining it to each end of the car, it protruded outward as the bottom slanted downward. The side thus extended outward into position with relation to the bottom of the car when the latter was tilted down in unloading, so as to render the former approximately parallel instead of perpendicular to the bottom. When the bottom of the car and the side of the car came into these respective positions at the time the dirt was dumped at the end of the bridge as above indicated, either the dirt did not all slide off and free the bottom of the car, but enough remained on the edge of it to hold it down, or else the working parts hung, and the side continued to protrude, all parts of the car remaining fixed in the position they took when the dirt bore down the bottom or floor, upon the chains on the west side being disconnected. If the dirt had slid off, and thus freed, the bottom of the car or its working parts had not hung, it was expected to right itself and reassume its carrying position by force of the greater weight of the side board or "door" bearing down on the west side; it remaining attached to the bottom while the other one, on the east, was detached and held by the cross-arms, as above indicated. Guy H. Morris, a brakeman working with the train at the time, had taken a position on the abutment of the bridge on the east side while performing his duties as brakeman. After the Western car had been dumped, as aforesaid, Ninski, Shortall's foreman in charge, ordered Morris to signal the engineer to move the train. In response to this order Morris immediately gave the signal, which was not promptly responded to by the engineer, and Morris began to walk toward the engine, continuing to signal him to put the train in motion; it appearing from the evidence before us that the signal was a "backup" signal. The engineer was on the same, the east, side of the engine, facing Morris.

As Morris walked along giving the signal, he came alongside the western dump car which had just been dumped, and, the engineer in the meantime having applied the power, the train had got into motion. As Morris walked along on the edge or shoulder of the dirt just previously emptied out of this car, the movement of the car, along with the other units of the train, released the bottom and the side or "door" from their respective positions, and they suddenly snapped together as the car was passing Morris, and his head and neck were caught between the two and the injuries thus inflicted resulted in his death. His surviving wife, the appellee, as temporary administratrix, sued appellant for the benefit of herself and her infant child for damages they sustained by Morris' death, and also for damages suffered by the deceased, it being alleged fully that he was employed in interstate commerce by appellant when he was killed.

It was substantially alleged by appellee that the death was the proximate result of appellant's negligence in two respects, as follows: First: That the Western dump car was manufactured to be operated by air, and not by hand or gravity, as it was operated on the occasion of Morris' death; that it was equipped with the apparatus for operation by air, and was intended to be so operated, so that the opening and closing of its sides in dumping dirt from it would be controlled by the engineer applying air through air lines to be run from the engineer's cab to air cylinders attached to the car, so that it would open and close only in response to the will of the engineer as he applied the air by manipulation of the air lever; that appellant, knowing this to be the intended and only safe manner of opening and closing this kind of car, did not connect it with the air line, and did not install in the cab a small and inexpensive valve necessary to the use of air in opening and closing the car, but, for the sake of small economy involving greatly increased danger and extraordinary hazard to employés, appellant required dumping by hand or gravity instead of by air, notwithstanding his duty to employés required the latter method exclusively, and the negligent failure and omission to use it directly and proximately caused Morris' death.

In this same connection it was alleged that appellant did not perform his duty to keep the dumping apparatus of the car in reasonably good working order, but negligently let it get to be and remain out of repair, defective, and incomplete, so that the parts would hang and cause the car to close at irregular and uncertain intervals.

Second. That appellant neglected to provide the brakeman Morris a safe place to perform his work, and was requiring him to engage in his labors at an unsafe place at the time of his death, and that appellant's violation of his duty to employés in this respect proximately caused the death.

Appellant answered, joining issue upon all material allegations, admitting that both Morris and appellant were engaged in interstate commerce when Morris was killed, and specially pleading contributory negligence and assumed risk. The case was submitted to a jury upon special issues, which were found against appellant. Judgment was entered for appellee in accordance with the findings made by the jury, and appellant has appealed.

Excepting complaint at the court's manner of charging on the subject of assumed risk, and refusing to give certain requested charges relating to it, the appeal embodies two, and only two, contentions, and they are these: That the evidence is quite inadequate to prove that appellant's negligence caused the accident, and that, conceding proof of appellant's negligence was attained by appellee, conclusive proof that the risk of the injury and its consequences were assumed by Morris was established by the evidence, and hence, the rule of assumed risk applying, there could legally be no recovery.

An exhaustive brief and argument presents these grounds in every minute aspect of the case with challenging force, and authorities are cited which seem strongly to support appellant's position. Abstractly and generally, both negligence and assumed risk are defined in terms of precise exactness and definiteness, but because of the quality which makes neither of them ever absolute, but always relative to the facts and circumstances of the situation to which their respective rules are to be applied, we have encountered difficulty in the enterprise of...