St. Louis Southwestern Ry. Co. v. Bounds

• Decision Date: 11 March 1926
• Docket Number: (No. 3148.)<SMALL><SUP>*</SUP></SMALL&gt
• Parties: ST. LOUIS SOUTHWESTERN RY. CO. OF TEXAS v. BOUNDS.
• Court: Texas Court of Appeals

Page 273

283 S.W. 273

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

(No. 3148.)^*

Court of Civil Appeals of Texas. Texarkana.

March 11, 1926.

Rehearing Denied April 8, 1926.

Appeal from District Court, Smith County; J. R. Warren, Judge.

Action by Mrs. Bessie Bounds against the St. Louis Southwestern Railway Company of Texas. Judgment for plaintiff, and defendant appeals. Affirmed.

See, also, 244 S. W. 1099; 266 S. W. 171.

The appellee, surviving wife of Louis C. Bounds, deceased, brought the suit as temporary administratrix of his estate, to recover damages for the death of the decedent, both those sustained by her as surviving wife and those sustained by the decedent in virtue of the conscious suffering endured by him between the time of his injury and death. Louis C. Bounds was performing the regular duties of a head brakeman on one of appellant's freight trains when he received injuries which resulted in his death about two hours later. He was crushed, as seems to be admitted, between the couplers on the tender of the engine and a box car, while assisting in switching operations at Athens about 3:45 o'clock a. m. of February 6, 1921. The following grounds of negligence are pleaded and relied upon: (1) The tender of the engine and the car were not equipped with automatic couplers, and in reasonably good operating condition, so that they would couple automatically by impact and uncouple without the necessity of a brakeman going between the ends of the tender and car. (2) The negligence of the rear brakeman in (a) releasing the hand brakes on the three cars to be switched before the tender of the engine was actually coupled to the cars; (b) failing to warn Louis C. Bounds before his injury that the three cars to be switched had been set in motion and were rolling down towards the engine; (c) failing to stop the three cars by means of "scotching" their wheels before they had rolled down to the engine in contact with the tender.

The appellant, besides general denial, pleaded and relied upon assumed risk and contributory negligence. The suit was submitted to a jury upon special issues, and in keeping with their findings judgment was entered in favor of the appellee.

It is shown by the evidence that at the time in question the deceased was the regular head brakeman on a freight train of appellant which was run between Waco and Tyler. S. C. Hart was the rear brakeman. It is admitted that the appellant was engaged in interstate commerce at the time of injury, and the deceased was employed as brakeman in such commerce. The train was on its round trip from Tyler. The freight train left Waco at 6:30 p. m. of February 5, 1921, and reached Athens, an intermediate station, about 3:45 a. m. of February 6. At Athens it was necessary to pick up and incorporate into the train three cars out of a string of eight or more cars then standing on a spur track called the "old stock track." The locomotive of the train was run over to and backed upon the spur track, to be coupled to "the first three cars" at the northerly end of the string of cars. It was the duty of the deceased as head brakeman "to make that coupling, couple the air hose there, and see that angle cocks were turned on." The first car in the string of cars, next to the engine and to be coupled to the engine, was a B. & O. box car. As to the three cars to be switched it was the duty of S. C. Hart, rear brakeman, as he says, "to inspect the cars and get them ready to be coupled when the engine backed against them." As testified by Mr. Hart:

"I went over and inspected them, lined up the air, let off the brakes, and set the brake on the fourth car, as my duty required."

On the signal of deceased, the locomotive was then backed to and against the cars, in order to couple and switch out the three cars needed to go into the train. The locomotive was backed carefully and in the usual way to effect a coupling. The track at the place was level and smooth. After the engine had backed and made the impact with the box car, the following occurred, stating it in the words of the engineer:

"He (Bounds) went in and cut the air between the tender and the head car and back to the angle cock. There is an angle cock on the car the same as on the tank. I knew he did cut in the air by my air gauge. It was his duty to do that, and that was the usual and customary way to do it. Hart then gave the signal of go ahead. Bounds at that time was standing off out to the side of the car and the track. Bounds repeated the signal. We were all three on the south side of the engine and cars. When Bounds repeated Hart's go-ahead signal I threw the engine in forward motion, released the air, and started her, and when I did the coupler on the car and the tender of the engine came apart. The air hose came apart, and the brakes on the engine went in extreme emergency because of the reduction in the air line when the hose broke loose. The force of the engine and the extreme pressure threw the engine about 10 feet from the cars. The engine stopped."

The other witnesses testified to the same fact, that when the locomotive moved forward on the signal of Bounds the coupler on the box car and the tender failed to hold, or "pulled loose." As to whether or not the couplers were adjusted to make or effect a coupling by the impact is a matter of opinion or inference. The rear brakeman, who was standing near the place, said:

"When the engine moved off from the cars I don't know whether the coupling had been made or not."

The engineer said:

"I brought the locomotive back properly and in the usual and proper way to effect a coupling. He (Bounds) went in there between the tender and the car after I had made the impact. I thought I had made the coupling between the two cars."

The inference is allowable from the engineer's evidence that the couplers were made ready and the operation of the engine was favorable to make the coupling by impact, and that the couplers "came apart" or became disjoined when the locomotive moved forward. After the locomotive moved off without sufficiently effecting a firm coupling, the following occurred, stating it in the words of the rear brakeman:

"When the coupling came apart, Bounds was on the right-hand side of the train, opposite the coupling, between the tender and the car. His duty was then to regulate the coupling so that it would be made. He went in between the cars. Just after he went in between the cars I heard the slack taking up between the second and third cars, and I heard him holler. The slack took up just about the time or just before he hollered, and the cars moved forward just about the time he hollered. The brakes of the cars did not hold them. If the brakes had been in good condition and had been properly charged with air, they would have set and held the cars after the air connection was broken. The cars were supposed not to have moved. When the cars moved they moved forward gradually. It was done slowly and gradually and made so little noise I could hardly hear it. The cars rolled about 6 feet. As soon as I heard him holler, I went to him at once. He was lying across the right rail, with his head outside the track, his feet inside the track, and his hips about on the rail. I was the first one to reach him. There was a cut in the right side of the body; he was mashed in the stomach, and mashed and bruised in the right side of the back. He could have been injured as he was by the couplers of the car and the tender catching him between them; that is about the only way he could have been injured like he was. When I got down to Bounds the cars were coupled to the engine."

Further stating the occurrence as the engineer testified to it:

"After the engine stopped, about 10 feet from the cars, Hart was back there by the end of the three cars. Bounds was in behind the tank. I saw that he had turned the angle cock and stopped the flow of air. I then felt a jar, and then heard Louis (Bounds) holler, `I am fastened, somebody come here.' He hollered this twice. That was the first thing I heard after the cars pulled apart, or rather after he disappeared behind the tank; that was about 10 seconds after I saw the gauge bringing up the air. When I heard Bounds holler, I put my reverse lever in the emergency, got down and went to him. He was loose from the coupler when I got there. Hart and I were there. The cars were apparently coupled at the time I got there after Louis (Bounds) hollered. The knuckles appeared to be meshed and coupled. I did not examine them thoroughly. I do not know whether the cars were actually coupled or not."

The parties appear to admit the fact to be that Mr. Bounds was caught between the couplers and fatally mashed. The inference is quite strong that he was at or by the coupler of the tender of the locomotive facing the engine, when injured, in ignorance of the cars rolling slowly upon him from the rear, and the testimony tends to show that he was at or by the coupler at the time for no other reason than to make adjustments of the couplers, which had failed of firm coupling in the first effort of coupling. A firm or effectual coupling apparently was made, although it may not have "actually coupled," as the engineer and rear brakeman, respectively, said, on the second impact, when the cars rolled to the engine. Whether or not the couplers required adjustment and manipulation for the second impact, and whether or not they were in proper repair and condition, and whether or not there was a necessity to go in between the cars to make adjustment and alignment of the coupler or its appliances, become issuable facts by the evidence according to personal interpretation. The coupler, both on the tender of the engine and on the B. &...