St. Louis Southwestern Ry. Co. v. Pyron

• Decision Date: 26 November 1925
• Docket Number: (No. 3118.)<SMALL><SUP>*</SUP></SMALL&gt
• Citation: 278 S.W. 270
• Parties: ST. LOUIS SOUTHWESTERN RY. CO. OF TEXAS v. PYRON.
• Court: Texas Court of Appeals

Page 270

278 S.W. 270

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

(No. 3118.)^*

Court of Civil Appeals of Texas. Texarkana.

November 26, 1925.

Rehearing Denied December 3, 1925.

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

Action by Mrs. N. C. Pyron, administratrix, against the St. Louis Southwestern Railway Company of Texas. Judgment for plaintiff, and defendant appeals. Affirmed.

Between 7 and 8 o'clock of the morning of November 2, 1923, Harvey J. Rucker, then a brakeman on one of appellant's freight trains, was fatally injured while he was between cars in the train trying to adjust the coupler on one of the cars so it would couple with another one of them. On the theory that the injury to Rucker was proximately caused by negligence of appellant and its employés in charge of the train, this suit for damages was commenced and prosecuted by appellee (as administratrix of Rucker's estate) for the benefit alone of two children (a son 6 years old, and a daughter 4 years old) Rucker left surviving him.

It appeared from testimony heard at the trial that, failing in an attempt by the use of mechanism provided for the purpose to adjust the coupler on one of the cars for coupling with another car, Rucker undertook, while standing on the track between the rails thereof, to adjust the coupler with his hands. While so engaged he was knocked down and run over by the car. The jury found, on special issues submitted to them, that the coupler Rucker was trying to adjust was not such a coupler as the law required appellant to have on the car, in that it would not "couple automatically by impact without the necessity of the brakeman going in between the end of said car and the other car to which it was the intention to couple same to adjust the coupler with his hand," and further found that the failure of appellant to have a lawful coupler on the car was a proximate cause of the injury to Rucker. The jury also found that the fireman of the locomotive of the train was guilty of negligence which was a proximate cause of the accident (1) in that he failed to keep a proper lookout and observe a stop signal Rucker gave immediately before he went on the track to adjust the coupler, and (2) in that he failed to keep such a lookout and observe a stop signal given by one Clark, a brakeman, just before the injury to Rucker. The jury also found that the operatives of the locomotive and cars were guilty of such negligence in that they caused or permitted same "to move backward without any signal from the deceased to do so." The jury having found further that Rucker's said son and daughter were damaged in the sum of $27,500 by his death, and that reasonable compensation for the suffering endured by Rucker because of the injury before he died was $2,500, the court rendered judgment in appellee's favor for the sum of $30,000, to be equally apportioned between said son and daughter. Thereupon appellant prosecuted this appeal.

Marsh & McIlwaine, of Tyler, for appellant.

Edwards & Hughes, of Tyler, for appellee.

WILLSON, C. J. (after stating the facts as above).

It appeared from testimony heard at the trial that at the time of the accident appellant was a common carrier by railroad engaged in commerce between the states, and that Rucker was employed by it in such commerce, within the meaning of the federal Employers' Liability Act (U. S. Comp. St. § 8657 et seq.). Because appellant was such a carrier, it would have been a violation of section 2 of the federal Safety Appliance Act (U. S. Comp. St. § 8606) for it "to haul or permit to be hauled or used on its line anw car used in moving interstate traffic not equipped with couplers coupling automatically by impact" and which could not "be uncoupled without the necessity of men going between the ends of the cars."

For the purpose of determining whether appellant, on the occasion of the accident, was violating the statute or not, the trial court submitted to the jury a question as follows:

"Was the car that injured deceased Rucker, on the south end thereof, equipped with an automatic coupler and its appliances which, in the condition they were in, would couple automatically by impact without the necessity of the brakeman going in between the end of said car and the other car to which it was the intention to couple same, to adjust the coupler with the hand?"

— and instructed them to answer it in the affirmative if the car was equipped on the south end thereof "with a coupler which could be adjusted by means of a lever on the cars, in the condition in which such lever and its coupling appliances then were, so as to couple automatically by impact with the car to which it was intended to couple same, without the necessity of the brakeman going in between the ends of said cars to open or adjust the coupler," and to answer it in the negative if the car was not so equipped.

Appellant insists it appeared without dispute in the testimony that the...