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

• Decision Date: 01 July 1909
• Court: Texas Court of Appeals
• Parties: ST. LOUIS SOUTHWESTERN RY. CO. OF TEXAS v. HOLT et al.<SMALL><SUP>†</SUP></SMALL>

121 S.W. 581

ST. LOUIS SOUTHWESTERN RY. CO. OF TEXAS v. HOLT et al.^†

Court of Civil Appeals of Texas.

July 1, 1909.

Rehearing Denied October 7, 1909.

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

Action by Della Holt and others against the St. Louis Southwestern Railway Company of Texas. From a judgment for plaintiffs, defendant appeals. Affirmed.

In appellant's switching yards in Tyler its main line track ran east and west. Running parallel with said main line track, and crossing Spring street, appellant maintained three other tracks—the first one known as the "house track," the second as "No. 4," and the other as "No. 5." By switches the house track connected directly with the main track, and by similar means No. 5 connected directly with the house track. No. 4 was a spur track. By a switch situated west of Spring street it connected with No. 5. February 4, 1908, appellant's switching crew left on track No. 5, west of Spring street and east of the switch connecting it with No. 4, it seems, box cars so placed as to obstruct the passage of a locomotive going over the switch east of No. 4. One of appellant's locomotives operated by one of its engineers, with Henry Holt as fireman, after backing west on the main line track returned east taking track No. 4, where it "sideswiped" or collided with the box cars so left on No. 5. As a result of the collision the side of the cab of the locomotive was so crushed inward and against Holt, then in the cab, as to inflict upon him injuries which caused his death. On the ground that appellant's switching crew was negligent in so placing and leaving the box cars, and on the further ground that its engineer operating the locomotive on which Holt was performing service as a fireman was negligent in failing to discover the position of the box cars and take such steps as were necessary to avoid the collision, appellees, the widow, children, and mother of Holt, recovered the judgment for $10,000, from which the appeal is prosecuted.

E. B. Perkins, Daniel Upthegrove, and Marsh & McIlwaine, for appellant. Johnson & Edwards, for appellees.

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

In refusing to instruct the jury to return a verdict in appellant's favor we think the trial court did not err. It was appellant's duty to use ordinary care to keep its track in a condition reasonably safe for Holt while engaged in the discharge of his duties. T. & P. Ry. Co. v. Hohn, 1 Tex. Civ. App. 36, 21 S. W. 942; Henry v. Railway Co., 109 Mo. 488, 19 S. W. 240. Kirk, a member of appellant's switching crew charged with the duty of placing the box cars, testified: "Track No. 4 is connected with No. 5 on the west side of the road or street crossing, where Spring street crosses them. The cars * * * were between Spring street and the switch stand for that connection. At the time they were left there (about an hour before the accident occurred) I was standing at the street crossing, and I observed the situation in which they were left. I could see that they did not clear track No. 4. I mean by that that they were not far enough away from the switch stand that cars passing on the other track would have plenty of room to go by, but would strike these cars there. If a car is set far enough away from the switch stand, there is no danger of a car passing along the other track striking it. If it is not placed far enough away, cars passing along the other track will strike it, or `sideswipe' it. * * * W. A. Graham was the foreman of that switch engine, and a man named Buckingham and myself were the switchmen. As well as I remember, Graham was standing on the old house track, south of me, on the Spring street crossing, about 50 or 60 feet from me. * * * Buckingham was up about the engine. He cut the cars off from the engine. I suppose it was the duty of one of us just about as much as the other to judge whether or not the cars were left where they would be in the clear. The foreman has charge of the work, but it is as much the duty of one switchman as of the other to see that the cars are left in the right place." The testimony quoted was not contradicted by any other testimony in the record of this appeal. It shows that the cars were knowingly left by appellant's employés charged with the duty to properly place them in a position where they would obstruct the passage of locomotives on track 4. That reasonable men might have concluded that so placing and leaving the cars was negligence on the part of the switching crew we think is clear, notwithstanding the further testimony of Kirk that it was Holt's duty as fireman to keep a lookout and see that the cars were so placed as not to obstruct said track; for it was shown that, as fireman, Holt was charged with the performance of other duties as well, and that, while engaged in the performance of such other duties, he might be able to keep such a lookout as would enable him to know of the existence of the obstruction in time to prevent the collision. As reasonable men, the jury might have believed that an ordinarily prudent person charged with the duty of so placing the cars as not to obstruct the track would have foreseen that a fireman on a locomotive on track 4 might not, because engaged in the discharge of duties preventing him from keeping a lookout, have discovered the obstruction in time to have averted the collision. It was the duty of the engineer operating the locomotive to use ordinary care to discover that track 4 was not obstructed by the cars on track 5, and to so operate his engine as to avoid the collision which occurred. The witness Perry testified that he was going north on Spring street; that just before he reached the main line track the locomotive backed west thereon; that the engineer was then in his place in the cab; that the locomotive came back headed east and took track 4; and that the engineer was still in his proper place in the cab. Kirk testified: "Anybody going in on track No. 4 could see they would `sideswipe' the cars on track No. 5. * * * If I had been intending to go into that track, I would have seen that I would hit the cars on track 5, and I would have avoided doing so. It is the duty of the engineer and fireman to keep a lookout. It is as much their business as it is the switchman's business to see whether cars will be sideswiped or are in the clear." The engineer did not testify, and the testimony of Perry and Kirk as specified was without contradiction. It seems to us to be sufficient to support a finding that the engineer either was negligent in failing to discover that the cars were in a position to obstruct his locomotive, or, if he discovered their position, was negligent in failing to so operate his locomotive as to avert the collision.

Holt assumed ordinary risks incidental to his employment. He also assumed extraordinary risks of which he knew, or of which he should have known. He did not assume risks of which he had no knowledge, due to a failure on the part of appellant to exercise reasonable care for his safety. As before stated, we think the evidence was sufficient to support a finding that it was due to appellant's negligence that the cars were left at a place on track 5 where they would obstruct the passage of the locomotive on track 4. The verdict of the jury involves such a finding, and therefore, in considering the contention made that the evidence showed that Holt assumed the risk of the collision, it is only necessary to determine whether the evidence was sufficient to support a finding that Holt did not know, and was excusable for not knowing, that the cars had been so placed as to obstruct the locomotive when moving on track 4. Kirk testified that it was as much the fireman's "business as it is the switchman's business to see whether cars will be...