Southern Pac. Co. v. Wellington

• Decision Date: 06 November 1901
• Citation: 65 S.W. 219
• Parties: SOUTHERN PAC. CO. v. WELLINGTON.<SMALL><SUP>1</SUP></SMALL>
• Court: Texas Court of Appeals

65 S.W. 219

SOUTHERN PAC. CO. v. WELLINGTON.¹

Court of Civil Appeals of Texas.

November 6, 1901.

Appeal from district court, El Paso county; J. M. Goggin, Judge.

Action by W. C. Wellington against the Southern Pacific Company. From a judgment in favor of plaintiff, defendant appeals. Reversed.

Beall & Kemp and Baker, Botts, Baker & Lovett, for appellant. Patterson & Buckler, for appellee.

NEILL, J.

This suit was brought by appellee against appellant to recover damages in the sum of $10,000 for personal injuries alleged to have been sustained by reason of the negligence of the company. Appellee's second amended original petition, upon which this case was tried, after alleging that he was on the 28th day of April, 1891, in the employ of the company as a carpenter in the car shops of appellant in the city of El Paso, engaged in repairing its cars, alleged that the car shop was situated on its main track; that at the time appellant had another building, in which were kept lumber and material necessary to be used in such repairing; that this building was separated from the main car shop by a switch and side track which ran between the main building of the car shops and the one in which lumber and material necessary for repairs were stored; that, to procure lumber and other material, it was necessary for him and his coemployès that work in the main shop to cross the side track frequently during the day; that it was the duty of appellant to keep the side track, between the point where it was crossed by said employés to procure and carry material from the storage to the main building and the point west of where said side track connected with the main track, free from cars and objects which might obstruct the view of an employé crossing from one of said buildings to another, so that such employés in the car shop might cross with safety; that, on the day before, appellant's employés negligently left standing on the side track west of the crossing a large number of freight cars, which obstructed the view between the points of crossing from one to the other of said buildings, and of connection of the side track with the switch on the main track; that said freight cars on the 28th day of April, 1891, obstructing the view as before stated, were still standing on said side track, when appellee, in the discharge of the duties of his employment, was crossing the side track with lumber to be worked upon in the main car shop, and the employés of appellant, negligently and without warning him, ran an engine from its main track upon the side track with great force against said freight cars left negligently standing thereon, or negligently caused the freight cars to be moved without notice or warning to him, whereby the freight cars were thrown back with great force upon the crossing over the side track while appellee was in the act of crossing the same from the building where the lumber was kept to the main shop, and he was caught between the freight cars and a flat car standing on the east side of said crossing, and greatly injured; that at the time the engine was run from the main track it was the duty of appellant, in the exercise of reasonable care for the protection of its employés who were on or crossing the said track at that point, to provide means or establish rules for giving warning to such employés of the approach of cars or engines from the main to the side track, and to give warning to any of said employés at said crossing in case any of the cars upon the side track were being or about to be moved at or across said crossing; that appellant wholly failed to discharge these duties, and on account of such failure appellee was caught between the cars in the manner stated, and injured as aforesaid; that it was the duty of appellant to make provision for the warning of its employés in charge of engines and cars against coming in and upon said side track with the engines and other cars; and that appellant wholly failed to make such provision or perform such duty, or take any reasonable precaution for appellee's protection, or the protection of any of the employés in said car shops. As we have had no occasion to change our views upon a number of assignments of error raising questions which we fully considered when this case was before us on the first appeal (36 S. W. 1114), we deem it unnecessary in this statement to notice the pleadings of appellant raising such questions. Nor shall we, in our conclusions of fact, take any notice of the evidence upon the issues involved in such questions as we now deem further consideration of unnecessary. In so far as appellant's pleadings are pertinent to the assignment of error which we shall consider in determining this appeal, they are pleas of (1) not guilty, (2) contributory negligence, (3) negligence of fellow servants, (4) assumed risks, and (5) sufficient reasonable rules and regulations of warning and protection were made by appellant and known to the appellee. The case was tried before a jury, and the trial resulted in a judgment in favor of the appellee for $5,500, from which this appeal is prosecuted.

Conclusions of Fact.

The undisputed evidence shows that the appellee for several years prior to his injury had been employed as a carpenter in the car shops situated in the city of El Paso, the buildings of which were located in reference to the main track running thereto and the side track, as described in his petition, the recitals of which are set out in our statement of his pleadings. And, for the purpose of determining the questions upon which our decision of this case will depend, it will be assumed that the evidence is sufficient to show that he was, from the time he was first employed to the date of his injury, the servant and employé, while at work as a carpenter in and about said shop, of the Southern Pacific Company, and that such duties as are due from the master to a servant engaged in such work as appellee was when injured were due him from said company. For about five months before the injury appellee had been engaged at work as a carpenter for appellant within a few yards of the spot where he was hurt, and was well acquainted with the place, the location of the buildings and of the tracks, and knew the usages and methods of handling and moving engines and cars thereon. A rule of the company that provided for the protection of its employés engaged in such work as appellee was when injured, which was printed on the time card daily furnished him, and of which he had full knowledge, is as follows: "If your duties require you to go around under or on the cars on any track, protect yourself with blue signals." The company, according to appellee's own witnesses, and the evidence of all the other witnesses upon the point, had a rule which required a blue flag at a car on its track which it did not want moved, as a signal that it would be dangerous to disturb such car; and appellee knew it was customary to put a flag on the car, where it was not expected to be disturbed while men were working on the track near it. "That flag," to use the language of one of the witnesses of appellee, "signified that the car was not to be disturbed, or there was danger in the vicinity of that car." The appellee knew at the time he was injured that appellant at no time during his employment had any other rule for the protection of its employés engaged in service like his at its car shops in El Paso. He never at any time complained to the company of its failure to make any other rule for his protection while engaged in the duties of his employment, nor indicated to the company that the danger incident to his employment could be lessened by its promulgating some other rule. At the time of the accident there was a flat car on the side track, which had its trucks removed, and was "jacked up," and not in a condition to be moved. To the west of this flat car there was standing on the side track a string of five or six box cars, which had been left on the track the day before. Between this string of freight cars and the jacked-up flat car there was a space of six or seven feet left for appellant's employés in the shop to pass back and...