Smithers v. Fort Worth & D. C. Ry. Co.

• Decision Date: 18 March 1925
• Docket Number: (No. 465-3967.)
• Parties: SMITHERS v. FORT WORTH & D. C. RY. CO. et al.
• Court: Texas Supreme Court

Page 764

272 S.W. 764

SMITHERS v. FORT WORTH & D. C. RY. CO. et al.

(No. 465-3967.)

Commission of Appeals of Texas, Section B.

March 18, 1925.

Rehearing Denied by Supreme Court April 29, 1925.

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

Action by Glenn Smithers against the Fort Worth & Denver City Railway Company and another. Judgment for plaintiff was reversed by the Court of Civil Appeals in 249 S. W. 286, and plaintiff brings error. Affirmed.

Barrett & Works, of Amarillo, Bailey & Richards, of Dalhart, and Jos. Gill, of Albuquerque, N. M., for plaintiff in error.

Thompson, Barwise, Wharton & Hiner, of Fort Worth, for defendants in error.

POWELL, P. J.

This is the second appeal of this case. Smithers recovered judgment, which was reversed and the cause remanded by the Court of Civil Appeals. See 228 S. W. 637. Upon a second trial of the case in the district court he again recovered judgment. The opinions of the Court of Civil Appeals on this appeal can be found in 249 S. W. 286. The Court of Civil Appeals tells us, and correctly, that "the issues as made by the evidence and as submitted to the jury [upon former appeal] in several material points differ" from those before that court upon the present appeal.

Upon this last appeal the Court of Civil Appeals first rendered judgment reversing the judgment of the trial court and remanding the cause for another trial. When this judgment was rendered, counsel for Smithers, as stated by the Court of Civil Appeals, in making a motion for rehearing, said:

"If it is really the holding of this court that the ash pan act was not shown violated because the position required on the ground for closing the pan did not require the entire body of the operator to be wholly under the engine, or if this court really believes the recent case of Phillips v. Pennsylvania R. Co. (C. C. A.) 283 F. 381, decisive of the question of proximate cause against appellee, the court should make effective decision by reversing and rendering the case."

In considering this proposition advanced by counsel for plaintiff in error, the Court of Civil Appeals acceded to the same, and, upon motion for rehearing, reversed the judgment of the trial court and rendered judgment for the railway company.

The opinions of the Court of Civil Appeals state the case fully in every particular. We do not think it is necessary to restate the case here, except in so far as may be necessary to make clear the two propositions we shall discuss, and the decision of either of which, in the view we take of the case, settles the suit in favor of the railway company. In stating the general nature of the case, the Court of Civil Appeals declares:

"The appellee, Smithers, sued the Fort Worth & Denver City Railway Company and the Colorado & Southern Railway Company to recover damages for personal injuries alleged to have been sustained by him while in the employ of the appellants at Texline as a hostler helper. The suit was instituted and tried under the federal Employers' Liability Act * * * and the Safety Appliance Act * * * and amendments thereto. Appellee alleges that the appellants were engaged in interstate commerce, and on April 24, 1917, the date of his injuries, he was in the general employment of the Fort Worth & Denver City Railway Company and in the special employment of the Colorado & Southern Railway Company; that his duties as hostler helper required him to build fires in locomotives and steam them up, to take charge of them when coming into the yards and roundhouse for repair, storage, and other purposes, to extinguish the fires therein, empty and clean the fire boxes and ash pans, and to prepare such locomotives generally for service; that on said date an engine engaged in interstate commerce came out of New Mexico to Texline, and was spotted at a point near the company's turntable in said town about 9 o'clock that night; that after the engine was spotted he went from the roundhouse with the hostler and another hostler helper for the purpose of extinguishing the fire, cleaning the fire box, emptying the ash pan, and working on and about the engine; that the ash pan in question was a large metal pan, built under the fire box, for the purpose of receiving ashes, cinders, and clinkers emptied from the fire box, and was built with a view of being dumped, emptied, and cleaned by use of a lever extending up through the floor into the engine cab; that when the pan and lever were in ordinary state of repair the pan could be emptied by using the lever while in the cab, and without the necessity of getting down and going under the engine or any part thereof; that when he went to the engine he climbed up into the cab, took hold of the lever, and made various attempts, after having opened the ash pan, to close it, and that the lever failed to work and operate, and failed to close the pan; that he undertook to get down out of the cab, intending to go under the engine for the purpose of closing the pan, and in doing so turned around with his face toward the engine and looked into the cab of the engine, and when he started to alight while in such position his foot slipped, and he fell into the turntable pit, a distance of approximately eleven feet."

It was further alleged:

"That the engineer and fireman who brought the engine into Texline, according to custom, had theretofore eaten their meals on the engine, and after eating had turned the water hose upon their dishes, washing the grease off of them onto the deck of the engine, and there was grease and greasy water on the deck and floor of the engine cab upon which he slipped."

As stated by the Court of Civil Appeals:

"The only two grounds of negligence submitted and considered upon this trial are the alleged violation of the ash pan law and the negligence of the appellants in permitting grease and greasy water to accumulate upon the apron or deck of the cab."

The Court of Civil Appeals unquestionably correctly holds that the company cannot be held liable because of the accumulation of grease on the apron or deck of the engine. We cannot do better than quote from its opinion in this connection:

"By referring to the special findings Nos. 6, 9, 10, and 8, supra, in the order stated, it will be seen that the jury determined that there was grease and water on the deck of the cab or engine at the time plaintiff undertook to go down out of the cab; that a person of ordinary prudence, in the discharge of his duties at that time, would have necessarily learned of the grease, water, and greasy water being on the deck; that a person of ordinary prudence would have necessarily learned of the dangers arising therefrom, in the discharge of his duties; and that he actually knew of the dangers mentioned. These findings are not complained of by the appellee. Their effect is plain. We cannot set them aside, and must necessarily hold that appellee assumed the risk, since they are supported by the evidence."

Smithers, being guilty of this assumption of risk, cannot recover for that particular negligence. There is no federal statute regulating such accumulation of grease, and hence the assumption of risk defense is not abolished as to that character of negligence. The Court of Civil Appeals correctly states the rule in this connection as follows:

"Having concluded that plaintiff has failed to establish a violation of the ash pan law, thus removing this element of negligence from the consideration of the case, the further question presented is the charge of negligence in permitting grease and greasy water to be and remain upon the apron or deck of the cab and its effect upon the right of appellants to rely upon the defenses of assumed risk. It is only where the injury is contributed to by a violation of a federal statute by the common carrier enacted for the safety of employees that the rule of assumption of risk is abolished. In all other instances it remains in force. Southern Railway Co. v. Crockett, 234 U. S. 725, 34 Sup. Ct. 897, 58 L. Ed. 1564; K. C. S. Ry. Co. v. Livesay, 118 Ark. 304, 177 S. W. 875; Cross v. C., B. & Q. Ry. Co., 191 Mo. App. 202, 177 S. W. 1127; T. & P. Ry. Co. v. White (Tex. Civ. App.) 177 S. W. 1185."

There is no controversy over the rule just announced. Therefore we come to consider the two controlling questions upon this appeal, as follows: (1) Was there a violation of the federal ash pan law? (2) If so, was such a violation thereof a proximate cause of the injury? The Court of Civil Appeals decided both of these issues in favor of the company. If correct in either holding, judgment...