St. Louis, S. F. & T. Ry. Co. v. Geer

• Decision Date: 22 June 1912
• Citation: 149 S.W. 1178
• Parties: ST. LOUIS, S. F. & T. RY. CO. v. GEER et al.
• Court: Texas Court of Appeals

149 S.W. 1178

ST. LOUIS, S. F. & T. RY. CO. v. GEER et al.

Court of Civil Appeals of Texas. Dallas.

June 22, 1912.

Rehearing Denied October 12, 1912.

Appeal from District Court, Grayson County; B. L. Jones, Judge.

Action by Nina M. Geer and others against the St. Louis, San Francisco & Texas Railway Company. From a judgment for plaintiffs, defendant appeals. Affirmed in part, and reversed and rendered in part.

Andrews, Ball & Streetman, of Ft. Worth, and Head, Smith, Hare & Head, of Sherman, for appellant. J. C. Wall and Wolfe, Maxey, Wood & Haven, all of Sherman, and Davis & Thomason, of Gainesville, for appellees.

TALBOT, J.

E. H. Geer was a switchman in the employ of appellant. He was injured on the night of August 5, 1910, in appellant's yards at Sherman, in Grayson county, Tex., and died on the following day. At the time of his injury, he was working at night as a switchman. His foreman was W. L. Pelly. Pelly had three helpers, consisting of deceased, Krum, and Combs. The switch engine was operated by Hartley, engineer. On the occasion of his injury, the crew were engaged in switching three bad order cars onto the track known as the "repair track" in the yards, in order that the same could be repaired. The yards in which deceased was working were what is known as "gravity yards," and the method of doing work was this: The switch crew would pick up a train that came into the yards and switch the cars onto the proper tracks to make up trains going out, and place such bad order cars as were found in the train on the track designated as a "repair track," in order that the same might be repaired for their journey. The method of doing this work was that the switches were thrown for the proper tracks, and the cars were given a start by the engine, and by reason of the tracks being downgrade the cars would, after starting, go of their own momentum to the points desired, and on the cars so switched a switchman was placed, for the purpose of controlling the cars by setting the brakes. On the occasion of Geer's injury, the crew were endeavoring to place three bad order cars on track No. 9, which was known as the "repair track." Deceased, acting under instructions of Pelly, as foreman, got upon one of the cars, for the purpose of riding the same into the switch, setting the brakes, and stopping the cars at the proper place on the "repair track." The cars were given a shove, but did not attain sufficient velocity to get to their destination, and it became necessary for the engine to again strike them and accelerate their speed. When the engine was brought against these cars, the jolt, caused by the engine striking the cars, threw Geer from the top of the cars between the cars and on the track, where he was run over and sustained the injuries that caused his death. The cut of cars that deceased was working with at the time of the accident were box car S. F. 29553, an oil tank car C. S. N. O. & P. 190059, and a box car N. Y. C. & St. L. 25049; the first named being the car that deceased was on when last seen before the injury. These cars arrived in the yards at Sherman on the evening of August 5, 1910, and came from the south over appellant's railway, and from other points in Texas. The first car mentioned was destined for Hugo, Okl., and left Sherman for its destination August 8, 1910, and was an empty. The next car was destined for Mounds, Okl., and left Sherman for its destination on August 10, 1910. The next car originated at Morrisville, Tex., was loaded with lumber, and was destined for Oklahoma City, and left Sherman for its destination August 7, 1910. The deceased left surviving him a wife, Nina M. Geer, and son, E. J. Geer, and a mother, Angeline Geer.

On September 14, 1910, the said Nina M. Geer, as administratrix of the estate of E. H. Geer, deceased, and in her own right as surviving widow of the said E. H. Geer, and E. J. Geer, a minor son of the said E. H. Geer, suing by Nina M. Geer, his mother, as next friend, brought suit in the district court of Grayson county, Tex., against the appellant, St. Louis, San Francisco & Texas Railway Company, for damages suffered by them on account of the death of the said E. H. Geer. The negligence alleged is, in substance, that the employés operating said locomotive and those working with the deceased in doing the switching at the time of his injury were negligent, in that the engine was pushed against said cars with unusual and unnecessary violence; that they were further guilty of negligence, in that it was customary, under those circumstances, that deceased should have been warned that said cars would be struck; and that the employés negligently failed to warn him and advise him of the same in time for him to protect himself against the jar and jolt incident to the engine striking said cars. Said appellees alleged their damages to be $30,000. On September 21, 1910, appellee Angeline Geer instituted suit in the district court of Grayson county against appellant for damages on account of injuries resulting in the death of said E. H. Geer, and alleged that she was a widow and the surviving mother of deceased, and was dependent on him for her support. She alleged substantially the same grounds of negligence as were alleged by Nina M. Geer, and alleged her damages to be $30,000. To both of which suits appellant answered by general demurrer, general denial, pleas of assumed risk and contributory negligence on the part of deceased in general terms. On December 8, 1910, on motion of appellee Angeline Geer, said suits were consolidated, and on December 9, 1910, a trial was had before the court and a jury, and resulted in a verdict and judgment in favor of Angeline Geer for $1,000 and in favor of the plaintiffs Nina M. Geer and E. J. Geer in the sum of $11,000, apportioned $6,000 to Nina M. Geer and $5,000 to E. J. Geer. Appellant presented a motion for a new trial, which was overruled, and it appealed.

The first assignment of error complains of the trial court's refusal to instruct the jury to return a verdict in favor of appellant as against the plaintiff Mrs. Angeline Geer. The contention, in substance, is that, as the evidence shows that the relation of employer and employé existed between the appellant and the deceased, E. H. Geer, at the time the injuries causing his death were inflicted, and that the appellant was a common carrier by railroad, and the cars the deceased was assisting to place on the "repair track" were destined to points in the state of Oklahoma, the appellant and the deceased were therefore engaged in interstate commerce, and the liability, if any, of the appellant for damages resulting from the death of the deceased is governed by the provisions of the federal Employer's Liability Act (Act April 22, 1908, c. 149, 35 Stat. 65 [U. S. Comp. St. Supp. 1911, p. 1322]); and that under said act a cause of action does not arise to the parents of such employé where, as in this case, such employé has a surviving wife and child. We are of opinion that this contention must be sustained.

The question here presented is not one of pleading, and has not heretofore arisen in any case decided by this court. The federal Employer's Liability Act provides that a common carrier by railroad, while engaging in commerce between any of the several states, etc., shall be liable in damages to any person suffering injury while he is employed in such commerce, or, in case of the death of such employé, to his or her personal representative, for the benefit of the surviving widow or husband and children of such employé, and, if none, then of such employé's parents, and, if none, then to the next of kin dependent upon such employé, for such injury or death...