Sears v. Texas & N. O. Ry. Co.

• Decision Date: 26 November 1924
• Docket Number: (Nos. 445-3934.)
• Citation: 266 S.W. 400
• Parties: SEARS et al. v. TEXAS & N. O. RY. CO.
• Court: Texas Supreme Court

266 S.W. 400

SEARS et al. v. TEXAS & N. O. RY. CO.

(Nos. 445-3934.)

Commission of Appeals of Texas, Section B.

November 26, 1924.

Error to Court of Civil Appeals of First Supreme Judicial District.

Action by Mrs. Nolia Sears and others against the Texas & New Orleans Railway Company. Judgment for defendant was affirmed by the Court of Civil Appeals (247 S. W. 602), and plaintiffs bring error. Affirmed.

Chas. Murphy, J. G. Donovan, and Woods, King & John, all of Houston, for plaintiffs in error.

Baker, Botts, Parker & Garwood, of Houston, for defendant in error.

STAYTON, J.

The application for writ of error presents the question of whether, under the federal Employers' Liability Act (U. S. Comp. St. §§ 8657-8665), the defendant railway company owed to its brakeman, Eugene Sears, any duty of maintaining a lookout to discover and avoid running into and killing him with one of its trains, where, as the evidence shows, he was at the time of the accident lying asleep perilously near its track in pursuance of no right.

The widow of Sears brought the suit individually, as next friend of the children of the marriage who were minors and whom she joined, and as temporary administratrix of the estate of her deceased husband. She alleged these facts, her authority to prosecute the action, and the death of Sears on July 29, 1920, by reason of the negligence, in many stated respects, of the employees on a passenger train of the defendant company, resulting in the loss to his family of his support; and prayed for damages, for apportionment of the recovery, and for general relief.

There were allegations that, at and before the time of his death, Sears was "in the discharge of his duties" as brakeman of one of the company's freight trains, had at such time been let off the train by the conductor, who was his superior, and left at a point on the track near Liberty, Tex., to stop, by means of signals, all other trains, so that they would not run into collision with the freight train as it proceeded ahead; had put out his signals, and because he had been on duty for about 24 hours, had become fatigued and tired from the long period he had been working and had fallen asleep near the track; and that the passenger train then and there ran into and killed him. There were further allegations that the casualty occurred at a place where employees should have been expected to be found in connection with their switching duties, and in disobedience of the brakeman's signals and the rules of the company applicable thereto. And, further, that on such date defendant was a railroad corporation doing business upon its line of railway as a common carrier, over which it "then and there, and at all times material to the issues of this case, operated cars and engines, and was at all said times engaged in the business of a common carrier handling both interstate and intrastate business, and all of the engines, trains, tracks, switch yards, and switch tracks belonging to said defendant railroad company, were on said date and are used in both intrastate and interstate commerce."

It will be convenient at this point to interpolate that these allegations, in accordance with the theory of the trial and appeal and the contentions of both parties, bring the case within the operation and control of the federal Employers' Liability Act, because they state a cause of action in favor of the personal representative of deceased, for the benefit of his widow and minor children, against a common carrier by railroad, which was guilty of negligence that caused the death of one of its employees, while, though asleep, he was excusably so and was employed by it in interstate commerce by way of protecting its trains that were engaged in such commerce. Philadelphia, etc., Ry. Co. v. Di Donato, 256 U. S. 327, 41 S. Ct. 516, 65 L. Ed. 955; North Carolina Ry. Co. v. Zachary, 232 U. S. 248, 34 S. Ct. 305, 58 L. Ed. 591, Ann. Cas. 1914C, 159; Spokane, etc., Co. v. Campbell, 241 U. S. 497, 36 S. Ct. 683, 60 L. Ed. 1125; Southern, etc., Ry. Co. v. Gray, 241 U. S. 333, 36 S. Ct. 558, 60 L. Ed. 1030; Davis v. Green, 260 U. S. 349, 43 S. Ct. 123, 67 L. Ed. 299; Missouri, etc., Ry. Co. v. Wulf, 226 U. S. 570, 33 S. Ct. 135, 57 L. Ed. 355, Ann. Cas. 1914B, 134; Seaboard, etc., Ry. v. Duvall, 225 U. S. 477, 32 S. Ct. 790, 56 L. Ed. 1171; Hours of Service Act, U. S. Comp. Stat. §§ 8677-8678; Baltimore, etc., Co. v. Wilson, 242 U. S. 295, 37 S. Ct. 123, 61 L. Ed. 312; Garrett v. Louisville, etc., Ry. Co., 197 F. 715, 117 C. C. A. 109; and, see, also, Kansas City So. Ry. v. Cook, 100 Ark. 467, 140 S. W. 579, and Helton v. Alabama, etc., Ry. Co., 97 Ala. 275, 284, 12 So. 276.

The case was given to the jury upon special issues, involving plaintiffs' allegations of discovered peril and negligence in not obeying a discovered signal on the track, the amount of damages, and the amount of deduction to be made by reason of contributory negligence which, the court charged, was present as a matter of law. The jury's findings upon the substantive issues were considered favorable to the defendant, and the court accordingly denied plaintiffs all relief.

The plaintiffs had, however, requested the submission of three issues of negligence that were presented in the petition: The first, as to whether, in the exercise of ordinary care, by keeping a reasonable lookout, the operatives of the passenger train would have discovered Sears and realized his peril in time to have avoided striking him with the means at hand, etc.; the second, as to whether by maintaining such a lookout they would have discovered the danger signal on the track, and in that way realized Sears' peril in time to have avoided striking him with the means at hand, etc.; and the third, as to whether a failure in either of such respects was the proximate cause of his death.

These requested issues, involving the point of a duty to maintain a lookout, were refused by the trial court; and its actions in such respects were afterward, on an appeal to the Court of Civil Appeals at Galveston, assigned as error. That court, in affirming the judgment below, sustained the rulings in this regard upon the ground that, as was held in Newport, etc., Co. v. Howe, 52 F. 362, 3 C. C. A. 121, the defendant owed the sleeping brakeman no duty, and that there was no causal connection between the acts or omissions of the workmen on the train and his death. The court made a statement of the evidence, which is agreed to and adopted as correct by plaintiffs. In their application they now assign as error these holdings, alone, averring that they are not supported by this statement.

The evidence as thus presented (Tex. Civ. App.) 247 S. W. 603-605, will be given in substance, and in the aspect of it that is most favorable to plaintiffs. It will be seen, in a number of important respects, to vary from and fall short of the case as alleged in the petition.

On the 28th day of July, 1920, Eugene Sears was brakeman in defendant's employ on a freight train that, after a rest of 15 hours, left the town of Echo at about midnight, to haul interstate freight from that place to Houston. Early the next morning, it arrived in the vicinity of the town of Liberty where, because a steep grade or hill was encountered, the necessity was presented of dividing the train, dropping a part of the cars on a side track and proceeding with the rest to the next town. On arriving at the latter point the engine was to place the cars, with which it had proceeded, on a side track and return for and bring forward those left near Liberty, reunite the train, and continue the trip.

A passenger train would have arrived at the latter place before the freight engine could return, and on this account, and because the passenger train had the right of way, the conductor intended to let it pass before returning for his cars on the siding near Liberty. It was also necessary to protect the partial freight train, as it proceeded beyond the hill, and the engine, as it returned light for these remaining cars, from any other trains that might approach from the direction of Liberty. For this purpose, the conductor, who was the superior of Brakeman Sears, left him at the side track in charge of the cars that were dropped at that point, instructing him to hold all trains by flagging them, excepting the passenger train. At this time, which was about five o'clock in the morning, Sears had with him a red lantern and a white lantern.

According to railroad practice and the rules of defendant, a red lantern was used to signify and warn trains of danger; such a light in front of a train would indicate that there was danger. The white lantern was used by railroad men to work and give signals with. The place for the red lantern as a warning was on the side of the track. The rules of the company under the heading, "visible signals," were to the effect that the color, red, indicated "stop." A torpedo placed on the track was also a stop signal.

An hour after Sears was left with the cars on the side track, he was seen, by persons not connected with the defendant, as he lay in a prone position, sleeping on the right of way near the main line. His head was close to one of the rails, being about 18 inches outside the ends of the ties and his body and legs angled away from the track. His red lantern, that appeared to be upon his arm, was either close to the outside of, or immediately within, the rail, and was lit. There was also in this vicinity a white lantern.

Shortly after daylight the passenger train arrived at this point running at the rate of 30 miles an hour. If the operatives of it had been maintaining a reasonable lookout they would have discovered Sears in his position near the track, from a distance exceeding that within which the engine and cars could have been safely stopped. When the train was upon him, about 20 feet away from him, Sears woke up and attempted to rise. He is described as having...