Southern Pac. Co. v. Vaughn

• Decision Date: 26 March 1914
• Citation: 165 S.W. 885
• Parties: SOUTHERN PAC. CO. v. VAUGHN.
• Court: Texas Court of Appeals

165 S.W. 885

SOUTHERN PAC. CO. v. VAUGHN.

Court of Civil Appeals of Texas. El Paso.

March 26, 1914.

Rehearing Denied April 16, 1914.

Appeal from District Court, El Paso County; Dan M. Jackson, Judge.

Action by Nellie Vaughn against the Southern Pacific Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Beall & Kemp, of El Paso, Baker, Botts, Parker & Garwood, of Houston and Wm. F. Herrin, of San Francisco, Cal., for appellant. Lea & Nagle and McBroom & Scott, all of El Paso, for appellee.

McKENZIE, J.

This suit was brought in the district court of El Paso county by Nellie Vaughn, administratrix and personal representative of the estate of Clyde C. Vaughn, deceased, against the Southern Pacific Company, to recover damages for the use and benefit of herself and her minor child, Clyde C. Vaughn, Jr., for the death of said Clyde C. Vaughn, who was her husband, and who was the father of said minor child, and who died on April 9, 1912, by reason of injuries sustained while in the employ of the appellant as a locomotive engineer, said injuries having been caused from an explosion of the boiler of the locomotive which he was operating. Trial was had upon a first amended original petition, it having been filed March 28, 1913, in which it is alleged that Clyde C. Vaughn was employed by defendant as locomotive engineer, operating a freight train between Yuma and Phœnix, both being in Arizona; that while engaged in interstate commerce, through the negligence of defendant, the boiler to the engine on which he was working as engineer exploded, and blew it up at Stanwix Station, in the state of Arizona, in consequence of which he was killed; that the boiler which exploded was unsafe and unsuitable to be used as such, for the reason that it was old, worn, burned, defective, muddy, dirty, and corroded; that the defendant had failed in its duty to furnish him with a safe engine, boiler, and appliances, and had failed to carefully and frequently inspect the same, and to repair the same and keep it in safe condition, and by reason of said negligence the explosion occurred; that the gauge cocks and water glass on said engine were defective, and did not properly register the amount of water in the boiler, and could not be used by the engineer to ascertain whether or not there was sufficient amount of water in the boiler; that at the time of the said accident, defendant was engaged in interstate commerce, and that said Vaughn was employed on the engine as an engineer, engaged in hauling interstate shipments of freight and merchandise into and through the state of Arizona; that the suit is brought under what is known as the federal Employers' Liability Act and the federal Safety Appliance Act, and the amendments thereto, she alleging that she relied solely on said act for recovery. Defendant answered by general and special demurrers, general denial, a plea of negligence on the part of the deceased in failing to keep the boiler of the locomotive properly supplied with water, and by pleas of contributory negligence and of assumed risk. Trial was had before a jury, and resulted in a verdict and judgment for appellee for the sum of $20,000, apportioned equally between her and the minor child.

Appellant's first assignment of error complains of the action of the trial court in overruling its objection to certain answers to questions of the deposition of M. G. Seeley, a witness for plaintiff, who answered, in response to certain interrogatories, that the water glass on the engine was unserviceable as a guide to the true water level in said engine when he was operating same the first week in January, 1912, the specific objection being that the evidence was too remote. Adverting to the evidence of the witness, we find that he testified in connection with and including the testimony as objected to, as follows: "I had engine 2739 some time previous to the date of the explosion. I have been in charge of the engine and boiler of engine 2739 as a locomotive engineer. I ran engine 2739 four times. First time in the first week in January, 1912, and about one month later ran the engine two trips, from Tucson to Mescal, and in March or April ran engine 2739 from Tucson to Bowie. That is the four trips. The first time I ran engine 2739 was the first week of January, 1912. During this trip the water circulated or rose in the glass in such a manner that I could not tell definitely the location of the water in the boiler. On the trip just referred to the water glass was not a reliable guide. On all four trips where I had engine 2739, the water circulated or bubbled up through the glass to such an extent that it rendered the water glass unserviceable as a guide to the true water level in the boiler. I did report the water glass upon my arrival in Yuma, when I had the engine on the first trip in January, 1912. I also reported the water glass upon two different occasions, when I arrived in Tucson with the engine from trips up the hill; said reports were upon regulation report blanks." True, the testimony in point of time appears to be remote, and the mere statement that the water glass was out of order the first week of January, standing alone, would not perhaps be admissible to prove that it was out of order on April 9th, when the accident occurred; but when the testimony of the witness is considered as a whole, and in connection with other testimony in the record which bears directly upon the condition of the water glass from the first part of January to the day of the accident, we are of the opinion that the testimony was material and admissible as bearing upon the condition and sufficiency of the water glass before and at the time of the accident. It being shown that the water glass was out of order before the accident, the defendant could have shown by testimony that since said time it had been repaired. This it had not shown, the only testimony offered being that of the witness Martinez, who was employed by defendant as hostler, and who testified to the effect that the day before the...