Smith v. Atchison, T. & S. F. Ry. Co.

• Decision Date: 17 May 1905
• Citation: 87 S.W. 1052
• Parties: SMITH v. ATCHISON, T. & S. F. RY. CO.<SMALL><SUP>*</SUP></SMALL>
• Court: Texas Court of Appeals

87 S.W. 1052

SMITH v. ATCHISON, T. & S. F. RY. CO.^*

Court of Civil Appeals of Texas.

May 17, 1905.

Appeal from District Court, El Paso County; J. M. Goggin, Judge.

Action by A. E. Smith against the Atchison, Topeka & Sante Fé Railway Company. From a judgment in favor of defendant, plaintiff appeals. Affirmed.

Millard Patterson and J. A. Buckler, for appellant. J. W. Terry, for appellee.

FLY, J.

Appellant sued appellee to recover damages arising from injuries received in a collision between two trains. The court sustained a general demurrer to the petition and dismissed the suit.

Appellant makes the following statement of the pleadings, which we adopt: "The petition alleged that the plaintiff was in the employ of the defendant company as engineer on the 1st day of May, 1903, and that at that time there was in full force and effect an act of the Legislature of the territory of Arizona, entitled `An act to protect the traveling public and railway employees within the territory of Arizona,' by the terms of which all railway companies in said territory were prohibited from requiring any conductor, engineer, fireman, brakeman, telegraph employé, or any one who had worked in his respective capacity for more than sixteen (16) consecutive hours, except in cases of casualty or actual necessity, to again go on duty or perform any work until he had had at least nine hours' rest, and prescribing a fine of from fifty ($50) dollars to five hundred ($500) dollars for every violation of the act. In addition to this act of the Legislature of Arizona, he alleged that at the time of his injuries there was in full force and effect a binding contract and agreement between the defendant and its locomotive engineers, including the plaintiff, the provisions of which defendant had adopted, printed, circulated, and published as a portion of its rules and regulations for the management of its trains, engines, and cars and the governing of its employés, under and by which engineers were not to be required to go out when, in their judgment, they needed rest, in which case he was to so indicate on the roundhouse register, and that eight hours' actual rest should be considered sufficient. He charged: That on April 30, 1903, he was called to duty and at 4 p. m. left Seligman, a station on defendant's road, in charge of his engine and a train of cars for Winslow, at which latter place he arrived at 7:15 a. m., May 1st, and got away from his engine about 8 a. m., and immediately registered in the proper book for eight hours' rest, as provided by said agreement and rules, and then went to his home. That he was soon thereafter sent for by the master mechanic of defendant, and requested to take a train of oranges to Pinta, a station on defendant's road. That he protested against doing this, and informed the said master mechanic that he had registered for rest, and needed it. That thereafter he was informed by the master mechanic that the trip was a short one of not over five (5) or six (6) hours, and that on such representation he took charge of said engine and cars of oranges, and left for Pinta at 11 a. m., and arrived there at 3 p. m., where he was delayed in his return for over two hours on account of the failure and incompetency of the defendant's telegraph operator at that point, who was unable to take orders and give them to plaintiff by which he was to be governed in returning with his train to Winslow. That after said delay he started westward from Pinta toward Winslow, and at about 8:20 p. m., at a station on defendant's road, his train collided with an engine and train on the main line of defendant's road, and plaintiff was injured by having his right hand caught between the cab and the tender of the engine, and his hand badly crushed, so as to greatly and permanently impair and practically destroy the use of his right hand. That said collision between said two trains was caused by the failure of the plaintiff to run his said engine and train onto the said side track or switch, so as to let the train going east pass his train on the main line. He charged that his failure to observe that he had reached said switch was on account of the fact that he was in no fit condition to manage said train or to perform his duties as engineer on account of having been continuously and consecutively at work as engineer for 31 hours and 20 minutes, without sleep or rest, under orders from the defendant's agent and managers, and on account of which long and continuous work he had become drowsy and sleepy, and was at the time he approached said switch so fatigued from the loss of sleep and rest that he fell temporarily into a doze, which was unavoidable on his part on account of...