St. Louis Southwestern Ry. Co. v. Bounds

• Decision Date: 09 November 1922
• Docket Number: (No. 2618.)
• Citation: 244 S.W. 1099
• Parties: ST. LOUIS SOUTHWESTERN RY. CO. OF TEXAS v. BOUNDS.
• Court: Texas Court of Appeals

244 S.W. 1099

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

(No. 2618.)

Court of Civil Appeals of Texas. Texarkana.

November 9, 1922.

Rehearing Denied November 16, 1922.

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

Action by Mrs. Bessie Bounds, temporary administratrix, against the St. Louis Southwestern Railway Company of Texas. From judgment for plaintiff, defendant appeals. Reversed and remanded.

Marsh & McIlwaine, of Tyler, for appellant.

Johnson, Edwards & Hughes, of Tyler, for appellee.

HODGES, J.

In February, 1921, L. C. Bounds, a brakeman in the service of the appellant railway company, was fatally injured while making a coupling between an engine and a freight car in the railway yards at Athens, Tex. Some time later his wife qualified as administratrix of his estate and filed this suit to recover damages for the pain and suffering endured by Bounds before his death and the injury sustained by her as a result of his death. She recovered upon both causes of action, the judgment aggregating $17,500. The suit is based on the alleged failure of the appellant to comply with the federal statutes (U. S. Comp. St. §§ 8605-8606) which require cars to be equipped with appliances which will couple automatically by impact, and with air brakes.

The testimony shows substantially the following facts: The freight train with which Bounds was connected arrived at Athens about 3:30 a. m. on the day of the accident. The crew had orders to pick up three box cars standing on a switch in the yards at that place and incorporate them in the train to be carried on to Tyler. After doing some other switching, the engine and tender were backed onto the side track, where those cars were standing. The rear brakeman, Hart, went ahead for the purpose of detaching the three cars wanted from the train of which they were a part and prepare them for movement. He "lined up the air," uncoupled the last of the three cars from its connection, and set the hand brake on the fourth car in the string, which was not to be moved. He also opened the angle-cock on the front car and closed it on the rear. Bounds rode the engine till it backed into the first car. After the impact he coupled the air hose between that car and the tender, opened the angle-cock on the tender, and gave the engineer the signal to go forward. The engine was moved about six feet and then was suddenly stopped by the automatic setting of the air brakes. It was then discovered that the attempt to couple had failed; that the air hose had been pulled apart at its coupling by the movement of the engine. This separation caused the brakes on the engine and tender to automatically set. Bounds then again went between the tender and the box car for the purpose of making the necessary adjustments. The circumstances indicate that he closed the angle-cock on the tender in order to release the brakes, and then attempted to adjust the knuckle of the coupler with his hands. While in that position, the three cars, which were standing on a slight incline, noiselessly rolled down against the tender, crushing Bounds between the two drawheads of the couplings. He called for help, and when assistance arrived he had fallen upon the ground across the rails. It was then found that the coupling had been effected by the impact. The engine was detached, connected onto the caboose, and Bounds was carried to Tyler for relief, but he died on the way. Some time later that morning the same engine returned to Athens for the purpose of taking up the same three cars and incorporating them in the train bound for Tyler. Another brakeman had taken Bounds' place.

It is conceded that the cars were equipped with automatic couplers of the kind required by the federal statutes, and also with a system of air brakes which would enable the engineer to control the speed of the train as required by another statute. The contention of the appellee is that the coupler was so defective that it could not be operated without the necessity of the brakeman going in between the cars, and that the air brakes on the three cars that rolled down against Bounds were so defective that they would not hold.

The evidence relied on by the appellee to show a defective condition of the couplers is, in part, the failure to make the coupling in the first impact at the time Bounds was injured, and in the first attempt after the return of the engine from Tyler to Athens. These circumstances are supplemented by the statements of several witnesses. Hart, a fellow brakeman with Bounds, testified, in substance, that he did everything he was supposed to do before the accident in preparing the three cars to be moved. When the engine pulled loose from the cars and broke the air connection, the angle-cock on the tender being open, the air brakes on the engine were automatically set. The angle-cock on the front car of the three was open when he got there after the connection had been broken. When the coupling came apart, Bounds was on the right side of the train, opposite the coupling. It was Bounds' duty to then go between the tender and the car and adjust the coupler so that the coupling could be made, and he did so. The brakes on the three cars did not hold them, and they moved gradually down towards Bounds — a distance of about six feet. On cross-examination he testified that the coupler on the tender of the locomotive was in good condition, as far as he could see. He did not examine the coupler on the car. He uncoupled the locomotive from the car by pulling the pin on the back end of the tender. He coupled and uncoupled that engine from other cars after that, some four times before leaving Athens. Williamson, for the plaintiff, testified that he had been employed as machinist's helper and was familiar with automatic couplers on locomotives and cars. He had occasion to observe the coupler on this particular engine, No. 560, in October after the accident. At that time he opened and closed the knuckle of the coupler. He noticed that when opened it looked rather wide. If the knuckle of a car has too much play in it, it will allow the knuckle to pull open; and the pin having too much play probably will allow the knuckle to pull up far enough to open. This may be true although the couplers go together and the pin drops. His attention was at the time directed to the size of the coupler on the engine. It appeared to be undergage; it opened too wide. The coupling pin hung a little, and the knuckle joint seemed to be loose. When he took hold of the lever and with it tried to raise the pin and open the coupler, it hung. There are many different things that could make the pin hard to raise; it could be worn and could have offsets worn in it so that it would hang. It should not be necessary for a man to go between the cars to open a knuckle with his hands, for that is what the pin lever is for. When he used the lever on the coupler in question at the time stated, it opened the knuckle only part of the way. He then stepped in and pulled it the rest of the way open with his hand. On cross-examination he stated: "I never measured the opening on this coupler; don't know that it was a 9¼ inch opening," but thought it looked rather wide. When the pin lever is raised it lifts the pin and opens the knuckle. When he used the lever on the coupling on the occasion in question, he opened the knuckle. At the time he opened the knuckle with his hand after testing the lever, it opened easily. He did not know how much this one had worn, because he did not have any rule and did not measure it. He noticed it just by glancing at it. Tipton, a witness for the appellee, testified that he was the engineer operating the engine at the time Bounds was injured. He testified at some length relating to facts about which there is no dispute, and the proper construction of a coupling. On cross-examination he testified that the fact that a coupling is not always made does not indicate, by any means, that the drawhead is out of fix; there was not a trip made by him that he did not make three or four trials on some couplings where the couplers were all right. If there had been any defect in that coupling, using it as they used it on that occasion, he would have discovered it, he thought. "Sometimes the drawheads can be all right and we will make several trials in order to make the coupling." He made trial after trial with passenger coaches, and the same was true with reference to freight cars. In that case the failure to couple was not due to the fact that the coupler had become worn and had too much play, for the couplings were not worn any; they were good couplings. The couplings on that engine and car were not in such condition as that it was necessary for a man to go in there to see whether the pin had fallen or not,...