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

• Decision Date: 24 December 1904
• Citation: 84 S.W. 428
• Parties: ST. LOUIS SOUTHWESTERN RY. CO. OF TEXAS v. REA.<SMALL><SUP>*</SUP></SMALL>
• Court: Texas Court of Appeals

84 S.W. 428

ST. LOUIS SOUTHWESTERN RY. CO. OF TEXAS v. REA.^*

Court of Civil Appeals of Texas.

December 24, 1904.

Appeal from District Court, Grayson County; R. L. Jones, Judge.

Action by J. H. Rea against the St. Louis Southwestern Railway Company of Texas. From a judgment in favor of plaintiff, defendant appeals. Affirmed.

E. B. Perkins and Head, Dillard & Head, for appellant. Randell & Wood, for appellee.

TALBOT, J.

This suit was filed by appellee against appellant on the 9th day of April, 1901, to recover damages for personal injuries. A former judgment in favor of appellant was reversed by the Court of Civil Appeals for the Fourth Supreme Judicial District. See 73 S. W. 555. The case was again tried before a jury on the 9th day of January, 1904, resulting in a verdict and judgment for appellee in the sum of $6,250, from which appellant has appealed.

Appellee was in the employment of appellant in the city of Texarkana, Tex., in the capacity of car inspector and repairer. It was a part of his duties, when trains arrived in that city, to inspect them for the purpose of ascertaining whether anything about the cars was broken, and to adjust and fasten the coupling apparatus. While appellee was between the tender of one of appellant's locomotives and the baggage or mail car of a passenger train standing on its railroad track at Texarkana, engaged, under the direction of his foreman, who was near by, in inspecting and fastening a chain on the couplers, another locomotive or car, operated by the servants of appellant, doing switch work, struck the rear end of the train upon which appellee was at work, and caused the car next to the tender of the locomotive to be moved forward with great force against said tender, catching appellee between them and inflicting upon him serious injuries. It was the custom of appellant to have the brake shoes set on the cars which appellee, in the performance of his duties, was required to inspect, to prevent them from being moved while undergoing inspection and adjustment; but they were not set on the occasion of appellee's injury. Appellant pleaded the general issue, contributory negligence, and assumed risk.

The alleged grounds of negligence on the part of appellant, upon which the case was submitted to the jury, were: (1) The propelling of a certain car by appellant's employés, in operating a switch engine, with great force against the rear car of the train upon which appellee was at work; (2) the failure to have the brake shoes set on the cars of said train; (3) the failure of appellee's foreman, Doty, to give him notice of the danger from moving trains being switched at the time of the accident.

In the fourth paragraph of the court's main charge the jury was instructed as follows: "Or if you believe from the evidence that plaintiff, while in the employment of defendant, in the exercise of his duties under such employment, was engaged in inspecting a train of defendant at Texarkana, Tex., on the 20th day of January, 1901, and securing and adjusting the couplings and coupling attachments thereof, and if you believe that the defendant, in the exercise of ordinary care for the safety of plaintiff and its other employés engaged in work of the same nature, should have set or caused to be set the brakes on each and every car thereof before attaching any other car thereto while making up said train, and that defendant failed to set said brakes or have the same set in this manner, and by reason of such failure plaintiff was injured, and if you further believe from the evidence that it was usual and customary to set said brakes in making up defendant's passenger trains at said time and place, and you further believe defendant was guilty of negligence in not setting said brakes, as negligence is hereinbefore explained to you, and you further believe from the evidence that plaintiff was exercising such care for his own safety as a man of ordinary prudence would have exercised under like circumstances, then in either of these events you will find for the plaintiff, unless you should find for the defendant under succeeding instructions." In this connection appellant requested the following charge: "If you believe from the evidence that the brake shoes were not set on the train at the time plaintiff was injured, and if you further believe from the evidence that plaintiff knew this, or in the exercise of ordinary care in doing his work would necessarily have acquired such knowledge, and that this was the sole, proximate cause of his injury, you will return a verdict for the defendant."

The giving of the above-quoted clause of the main charge and the refusal of the said special charge is made the basis of appellant's first and second assignments of error. Two propositions are advanced and urged under these assignments: First. "The evidence shows or tends to show that plaintiff knew, or in the exercise of ordinary care in doing his work would have known, that the brake shoe was not set. Therefore he assumed the risk of working with the cars in this condition, and the charge was error, in that it permitted him to recover, notwithstanding this knowledge, and excluded the defense of the assumption of the risk by him, because of such knowledge." Second. "The charge was error, in making defendant liable to plaintiff if it was guilty of negligence toward other employés of plaintiff [defendant] engaged in the same character of work, in that the circumstances surrounding such employés may have been such as to make that negligence toward them which would not have been negligent toward plaintiff."

The first question here involved is one of assumed risk on the part of appellee in relation to the setting of the brake shoes on the cars upon which he was at work, and the sufficiency of the court's charge upon that phase of the case. Standing alone, and especially in view of the above special charge requested, the main charge complained of would doubtless be subject to appellant's criticism, and its proposition should be sustained. But, when considered in connection with and in the light of other charges bearing upon the question, we think that feature of the case was fully and fairly presented, and that appellant has no just cause of complaint. Upon this phase of the case the court in his main charge instructed the jury that appellee assumed the risks and dangers ordinarily incident to the work he did or attempted to do at such time as the switch engine was being operated and the trains made up in the usual and customary manner, and at the request of appellant further told them in substance that if it was the custom of defendant to have the couplings made while the brake shoes were not set, and appellee knew that fact, or in the exercise of ordinary care in doing his work he would necessarily have acquired the knowledge of it, then he assumed the risk of that method of work. If it may be said, in view of the evidence, that these charges were too restrictive, and were defective, in that they charged appellee with the assumption of the risks incident to the work he was doing only in the event it was the custom of appellant to have the same done with the brake shoes not set, and that he assumed such risks, whether such was the custom or not, if in fact the brakes were not set and appellee knew the fact, or must have acquired the knowledge of it in the prosecution of his work, then we think the error was cured by another special charge, given upon the subject at the request of appellant, which reads as follows: "If you believe from the evidence that plaintiff was injured on account of the method in which defendant was having the work done at the time he received his injuries, if any he received, and if you further believe from the evidence that before the time of his injury he knew of such method, or in the exercise of ordinary care in the doing of his work would necessarily have known of the same, then you are instructed that he assumed the risk of this method of doing the work, and you will return a verdict for defendant, whether you believe the method to have been the best method or not, and even should you believe it to be a negligent method."

It is insisted by appellant that the evidence showed that the brake shoes were not set at the time appellee was injured, and that by reason thereof the car causing his injury could be much more easily moved than if they were set; that plaintiff knew they were not set, or in doing his work must necessarily have acquired that knowledge, and therefore he assumed the risk of this condition; that the court not only refused a charge presenting this issue, but, on the contrary, the effect of his charge was to exclude it as a matter of defense. It is unquestionably true, we think, that if the brake shoes were not set, and appellee knew that fact, or in the prosecution of his work must necessarily have known it, then he assumed the danger attending the failure to have them set, and, if such failure was the proximate cause of his injuries, he was not entitled to recover. It may be conceded that the testimony showed a strong probability that appellee knew that the brake shoes were not set, but it cannot be said that this was absolutely certain, or that the evidence was of such a conclusive character "that there was no room for ordinary minds to differ as to the conclusion to be drawn from it." This being true, it became a question for the determination of the jury from all the evidence before them, under appropriate instructions. The last above special charge quoted, given by the court at the request of appellant, was not as specific in directing the attention of the jury to the particular fact in question as the special instruction refused. Still we believe the same so explicit and pointed that the jury fully comprehended and understood the very question at issue. They were...