St. Louis S. W. Ry. Co. of Texas v. Brown

• Decision Date: 24 January 1914
• Citation: 163 S.W. 383
• Parties: ST. LOUIS S. W. RY. CO. OF TEXAS v. BROWN.
• Court: Texas Court of Appeals

163 S.W. 383

ST. LOUIS S. W. RY. CO. OF TEXAS v. BROWN.

Court of Civil Appeals of Texas. Dallas.

January 24, 1914.

Rehearing Denied February 14, 1914.

Appeal from District Court, Grayson County; W. M. Peck, Judge.

Action by Harry Brown against the St. Louis Southwestern Railway Company of Texas. From a judgment for plaintiff, defendant appeals. Affirmed.

E. B. Perkins, of Dallas, and Head, Smith, Maxey & Head, of Sherman, for appellant. Jones & Hassell and E. W. Neagle, all of Sherman, for appellee.

RAINEY, C. J.

Appellee sued the appellant to recover damages for personal injuries inflicted upon him by the negligent handling of one of its trains; the allegations being, in effect, that while he, as section foreman, was engaged with a crew of men unloading ties along defendant's right of way from a train moving slowly along, the train stopped, and then, without warning to him, the engineer caused the train to start with a sudden jerk, and he was thrown violently against the end of a tie, which he was attempting to unload, causing a rupture in the lower part of the stomach, etc., injuring him, rendering him unable to perform physical labor, and causing him great mental and physical pain and suffering. Defendant answered by general denial and special pleas of contributory negligence and assumed risk and negligence in appellee failing to procure proper treatment, and in failing to use proper care for his injuries. A trial resulted in a verdict and judgment for appellee for $2,500, from which this appeal is taken.

We conclude from the evidence that appellee was appellant's section foreman, and assisting in unloading ties, and was injured by the negligent handling of the train, which is shown by his testimony, which testimony is corroborated by several witnesses, and is as follows: "It was usual and customary for the train to move along slow while we were unloading ties with the train in motion. It was my duty to direct the movement of the train in reference to the unloading of a car of ties. I had given some directions that morning with reference to the movement of the train. I gave those directions to the brakeman. He would signal the engineer. The engineer would move the train in reference to signals. * * * The train did come to a stop. When the train stopped it didn't more than stop until it just reversed and came back. I started after a tie as it stopped, and I caught hold of the tie, and slipped it off, and as I slipped the tie nearly off the pile the train gave a jerk. * * * I got hold of it, and was going toward the door with it, and was going to throw it out while the train was stopped. Having stalled there, I intended having him to stand there a little while; but before I had time to get this tie out, and give them a signal out the door to stand, he just reversed the train and came right back in a hard jerk—just flung the engine right back as quick as he could reverse it, and came back. Not a thing was done by the engineer or any one else in reference to giving signals or warning as to any other movement going to be made of the train after it stopped." The sudden jar or jerk threw some of the crew against the appellee, knocking him against the end of the tie, causing him to be ruptured.

The first two assignments are grouped. They complain of the refusal to give two special charges which are in substance the same and that is: The jury are told that, if they believe the train was slowly moving when it was caused to suddenly and unnecessarily jerk, which caused another employé to bump against plaintiff, and knock or throw him against the end of a tie, to find for the defendant, etc.

The theory of appellant, it seems, is that, the allegations of the petition being that the train was standing just before it started with a jerk, and there being one witness who testified that the train was moving slowly when the jerk occurred, a material issue was raised as to that point, which called for the special charge.

Under the court's charge we do not think appellant was injured by the refusal to give the requested charges, or either of them, for, if all the evidence had shown that the train was slowly moving, as testified to by the one witness, the variance between the allegations and evidence would be immaterial. The gist of the negligence alleged was the sudden jerking of the train. However this may be, the court charged the jury: "If you do not believe from the evidence that said train stopped, and was started suddenly, * * * you will find for the defendant"— which was, in effect, telling the jury that, if they believed the train was moving, to find for the defendant.

The third assignment is: "The court erred in permitting Ben Benjamin, a witness offered by the plaintiff, to testify, over the objection of the defendant, that the question called for an opinion and conclusion of the witness, and not a statement of facts; to testify that `the distance he was from the engine he could have heard the whistle if it had blown.'"

The witness Ben Benjamin, one of the section crew, testified: "Under the customary way of doing that work of unloading ties when the train stopped, without any signal from the foreman, the engineer would give a signal with his whistle before he would move the train again. He would give three blasts of the whistle when he was going to back up. When he backed this train up on the occasion I have spoken of, I never heard any signal given. I did not see or hear any signal...