St. Louis Southwestern Ry. Co. of Texas v. Neef

• Citation: 138 S.W. 1168
• Parties: ST. LOUIS SOUTHWESTERN RY. CO. OF TEXAS v. NEEF.
• Decision Date: 24 June 1911
• Court: Texas Court of Appeals

138 S.W. 1168

ST. LOUIS SOUTHWESTERN RY. CO. OF TEXAS v. NEEF.

Court of Civil Appeals of Texas. Dallas.

June 24, 1911.

Appeal from District Court, Hunt County; T. D. Montrose, Judge.

Action by A. W. Neef against the St. Louis Southwestern Railway Company of Texas. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

E. B. Perkins and Templeton, Craddock, Crosby & Dinsmore, for appellant. Sherrill, Mulkey & Hamilton, for appellee.

BOOKHOUT, J.

A freight brakeman of the St. Louis Southwestern Railway Company of Texas, A. W. Neef by name, was injured in service at Mt. Pleasant, September 29, 1909. He sued, alleging that a loose stirrup on a box car was the cause of the accident, and predicating negligence on the failure of the defendant to have the stirrup firmly fastened. The defenses interposed were the general issue, contributory negligence, and assumed risk. A jury awarded him $12,000. Defendant's motion for new trial having been overruled, it perfected an appeal.

A description of the yard in which the accident occurred will aid to an understanding of the case. Defendant's main line track at Mt. Pleasant runs north and south and a public street or road running east or west crosses the track at right angles. The depot building and other stational structures are located immediately west of the track and north of the street or road. The express office is next to the street or road, then a small "park," then the depot building, then the dispatcher's office. The scale track leaves the main line somewhere near the dispatcher's office, and extends north along the west side of the main line. There are five switch tracks lying east of the main line opposite the station. The track by which these tracks are reached from the main line is called the "lead," and leaves the main line a short distance—one or two car lengths —south of the street or road. It extends north and lies east of the main line. The switch tracks are numbered consecutively 1 to 5, beginning with the track nearest the main line. The accident occurred a few minutes before midnight. South-bound passenger train No. 1 for Tyler and Waco was nearly due, and would come in on the main line. West-bound passenger train No. 101 for Dallas and Ft. Worth was due to leave immediately after No. 1. It was to be backed in on track No. 1, just before the arrival of train No. 1, but at the time of the accident was on the Ft. Worth branch line south of the street or road. A freight train was being made up on the scale track. The bulk of the train had been placed on that track; the caboose being at the north end. It was desired to get six merchandise cars off track No. 2 and place them on the scale track in front of the cut of cars already on that track, which when done would complete the making up of that train. The engine, which was headed south, was cut loose and pulled out of the scale track onto the main line. It was run south below the lead switch, and then backed up the lead onto track No. 2 and coupled to the cars wanted. It was then pulled down the lead onto the main line, and then backed north past the lead switch, and over the street or road crossing, and onto the scale track in the desired position. Neef was injured just north of the crossing as the engine was backing up. He had accompanied the engine to track No. 2, and was following it back. When the engine pulled the merchandise cars onto the main line, he threw the lead switch and gave a signal for the engine to back up. He then walked back just north of the crossing, and threw the derailer and lined up switch No. 2. When he got the derailer thrown and switch No. 2 lined up, the north end of the cut that was backing up was a little past him. He then ran to the northeast corner of the north car, caught hold of the handholds of the ladder with both hands, placed his left foot in the stirrup under the car and started to pull up, and, when he did so, his foot slipped out of the stirrup and went under the wheel. He says he felt the stirrup give when he started to pull up.

It is contended in the first assignment that the court erred in permitting plaintiff, while testifying as a witness in his own behalf, to testify that it is dangerous for a stirrup of the kind in question to be loose so that it will move, etc. The objection to this testimony was that it is immaterial and irrelevant, called for an opinion and conclusion of the witness upon a question of fact which was for the jury to determine, and is not a matter that may be proven by expert testimony. These objections were overruled and the evidence admitted. In this there was no error. As to whether a loose stirrup used for mounting and climbing onto box cars would be dangerous or safe to climb upon while the cars are in motion is a proper question for expert testimony, and, appellee having qualified as an expert in the use thereof, there was no error in permitting him to give his opinion as such expert that a loose stirrup was dangerous. Railway Co. v. Thompson, 75 Tex. 503, 12 S. W. 742; McCray v. Railway Co., 89 Tex. 173, 34 S. W. 95; Railway Co. v. Johnson, 78 Tex. 541, 15 S. W. 104; Railway Co. v. Matthews, 28 Tex. Civ. App. 92, 66 S. W. 589; Railway Co. v. Hughes, 22 Tex. Civ. App. 134, 54 S. W. 264; Railway Co. v. Waller, 27 Tex. Civ. App. 44, 65 S. W. 210; Railway Co. v. Boyd, 119 S. W. 1156; Railway Co. v. Beauchamp, 116 S. W. 1167, 1168.

During the trial defendant on cross-examination of plaintiff asked him if it is not a fact that in the course of his four years' experience he had used a great number of stirrups that were loose? This question was objected to on the ground that the matter of inquiry here is whether or not this stirrup was loose; and the fact that defendan...