St. Louis Southwestern Ry. Co. v. Wilkes

• Decision Date: 15 May 1913
• Citation: 159 S.W. 126
• Parties: ST. LOUIS SOUTHWESTERN RY. CO. v. WILKES.
• Court: Texas Court of Appeals

159 S.W. 126

ST. LOUIS SOUTHWESTERN RY. CO. v. WILKES.

Court of Civil Appeals of Texas. Texarkana.

May 15, 1913.

On Motion for Rehearing, July 3, 1913.

Appeal from District Court, Smith County; R. W. Simpson, Judge.

Action by U. T. Wilkes against the St. Louis Southwestern Railway Company. Judgment for the plaintiff, and defendant appeals. Reversed and remanded, on rehearing.

Appellee received bodily injury while in the service of appellant as conductor operating a freight train. The train, at the time of the injury, was made up, and in the order of an engine and tender, merchandise car, the six cars composing the "wrecking outfit," a coal hoist, coal car, three box cars, caboose, and box car, making 14 cars besides the tender. The coal hoist was on two trucks and was an old one, and was chained up at both ends to the train. The three box cars ahead of the caboose, and the box car behind the caboose, were bad-order empty cars, being carried to the car shop for repair; two of them had been damaged in a wreck, and the other one had the drawhead pulled out. The car just ahead of the caboose was the one that had a drawhead out, and it was held to the rear end of the car ahead of it by means of chains. Appellant's foreman of the wrecking crew and several of his crew, besides the train crew, were on the train. As the train was approaching the station of Murchison the engineer whistled for the station, and the conductor signaled him not to stop, but go on, and the engineer answered the signal by a whistle. Immediately after the engineer answered the signal there occurred a violent jam, or impact, of the cars, doing considerable damage to the coal hoist and the badorder cars. Appellee at the time was riding in the cupola of the caboose, and by reason of the jar incident to the collision he was thrown from the cupola to the floor, receiving severe and grievous injury. Immediately after this collision several of those on the train examined the cars and the situation on the ground. The testimony of these witnesses agreed that the collision occurred by reason of a separation of the train line into two parts, and such rear end running into the head end as it slowed up for Murchison. This conclusion is warranted by the evidence, for the reason that the violent impact of the cars as shown was not likely to have resulted except from a separation of the train into two parts. It does not appear that any of the crew saw or knew of any separation of the train line at the time, and this is accounted for as being due to the darkness of the night. The condition of the cars, and the situation on the ground after the collision, sufficiently indicated that the train line became separated into two parts in transit, either between the two cars ahead of the caboose by reason of the chain that held such cars together becoming unhooked, or at the coal hoist by reason of the disarrangement of the chain that held it to the next car. The testimony shows that the hooks were placed in the links of the chain without being tied therein, and that the slack in the chain had worked the hook out of the link or disarranged it. The facts show that less than 75 per centum of the cars in the train were equipped with air brakes connected up and working. The facts are given in more detail hereinafter. Appellee pleaded as grounds of negligence on the part of appellant proximately causing the injury: (1) "To operate and cause to be operated a train composed such as was the train in which this plaintiff was in charge, in this, to wit, that it was a violation of the rules and regulations of defendant to handle in the same train bad-order cars and merchandise freight cars"; and (2) "to operate and cause to be operated a train over its said line insufficiently equipped with air, in that less than 75 per cent. of the cars of said train were equipped with power—or train brakes, commonly known as air brakes"; and (3) "in the manner in which bad-order cars were incorporated in said train, in this, to wit, that the chains and fastenings in lieu of drawheads were insufficient and not securely fastened." The court submitted to the jury for finding of negligence the grounds of the petition numbered 2 and 3. The appellant pleaded general denial, and specially pleaded contributory negligence and assumed risk. The trial was to a jury, and a verdict was rendered in favor of appellee. The facts warrant a finding, as involved in the verdict, that appellant was guilty of negligence, in either or both grounds of negligence pleaded proximately causing the injury, and that appellee did not assume the risk, and the amount of damages is warranted by the evidence.

E. B. Perkins and D. Upthegrove, both of Dallas, and Marsh & McIlwaine, of Tyler, for appellant. Lasseter & McIlwaine and N. A. Gentry, all of Tyler, for appellee.

LEVY, J. (after stating the facts as above).

The court charged the jury that: "The law provides that 75 per centum of the cars in trains, such as the one in question, shall be equipped with power or train brakes. Now if you shall find that 75 per centum of the cars in the train at the time of the injury, if any, to plaintiff were not equipped with power or train brakes, and if you find that such fact, if you find it to be a fact, directly and proximately caused or contributed to cause the caboose in which plaintiff was riding to run into the other portion of the train from which it had been separated," etc. It is the claim of appellant by the first assignment of error that the failure to have 75 per centum of the cars equipped with power or train brakes was not the direct and proximate cause of the collision, and that therefore it was error to submit the issue as to whether the cars were so equipped. It is the rule, supported by the weight of authority, that while one who violates a statute may be regarded as a wrongdoer, and the act regarded as negligence, still it may or may not be the proximate cause of the injury complained of, according to the facts of the particular case. Negligence cannot create a right of action unless it is the proximate cause of the injury complained of by the plaintiff.

However, as said in Ring v. City of Cohoes, 77 N. Y. 83, 33 Am. Rep. 574, upon a negligent happening, "where several proximate causes contribute to an accident, and each is an efficient cause, without the operation of which the accident would not have happened, it may be attributed to all or any of the causes; but it cannot be attributed to a cause unless without its operation the accident would not have happened." And such is the rule of the authorities.

In the present case it appears to be true that as the train was approaching the station of Murchison there occurred a violent jam, or impact, of the cars somewhere in the rear part of the train ahead of the caboose, throwing appellee out of his seat in the cupola of the caboose to the floor, and he was thereby injured. The crew, who testified as witnesses, all account for the cause of the impact as being a separation of the train in transit into two parts, by reason of the chain that held two cars together, in lieu of drawheads, becoming unhooked, or disarranged, and the separated rear end running into the head end as it slowed up for the station. And upon all the facts stated by the witnesses the jury would have been fully authorized to find a negligent arrangement of the chain by the wrecking crew, charged with the duty by appellant to securely arrange same. It further appeared from the evidence that the train consisted of 15 cars, including the tender of the engine; and, to meet the quantum of air brakes which must be carried in all trains of the kind here under the safety appliance act (Acts 31st Leg. c. 26) of this state, it was necessary that 12 of the cars be equipped with air brakes, assuming for the moment that the tender should be regarded as a car in such train line. There is sufficient evidence to show a failure to have as many as 12 of the 15 cars equipped with air brakes and connected up and working air in the train line ahead of the caboose. There is proof that if air brakes had been working on 12 cars next to the engine, and a separation of any of the 12 cars occurred, the breakaway in the train line would have caused the brakes on that portion to automatically set and stop the cars, and a serious collision would not have happened. Thus it would appear from the evidence that, although the separation of the train into two parts was by reason of the chain that held two cars together in the train becoming unhooked or disarranged, nevertheless the violent impact causing the injury would not have happened if the safety appliance act had been complied with. And it would not be in the province of the court to refuse to submit to the jury for them to determine whether the failure to equip 75 per centum of the cars with power or train brakes was an efficient cause of the injury, if the breakaway occurred between any of the 12 cars next to the engine in the train line. It can here be stated, in order that the contention be made clear, that the appellant insists that the evidence establishes that the breakaway occurred between the twelfth, and thirteenth cars, and that therefore the collision would have occurred even had the air on the 12 cars next the engine been connected up and working as required by law, and consequently the failure to comply with the terms of the law had nothing to do with the happening of the injury. The happening of the separation, or between what cars it occurred, was not seen or known of by the witnesses at the time or before the impact, and it rests in the opinion of the witnesses between what particular cars it first occurred, based on an examination of the cars and their condition and situation as it appeared after the collision. It was in the nighttime, and too dark to see a separation at the time, they say. Thus an explanation of the condition and situation of the...