St. Louis Southwestern Ry. Co. v. Bounds

• Decision Date: 30 October 1924
• Docket Number: (No. 2956.)
• Citation: 266 S.W. 171
• Parties: ST. LOUIS SOUTHWESTERN RY. CO. OF TEXAS v. BOUNDS.
• Court: Texas Court of Appeals

266 S.W. 171

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

(No. 2956.)

Court of Civil Appeals of Texas. Texarkana.

October 30, 1924.

Rehearing Granted November 20, 1924.

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

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

E. B. Perkins, of Dallas, and Marsh & McIwaine, and Bryan Marsh, all of Tyler, for appellant.

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

HODGES, J.

This appeal is from a judgment in favor of the appellee, Bessie Bounds, temporary administratrix of the estate of Lewis Bounds, for damages resulting from the killing of Lewis Bounds, who was her husband. In a former appeal the case was reversed and the cause remanded because of the insufficiency of the evidence to support the verdict. See Railway Co. v. Bounds, 244 S. W. 1099. In many respects the facts presented in this appeal are substantially a repetition of those appearing in the former record.

Bounds was killed at Athens, a station on the appellant's line of railway, on February 6, 1921, while assisting in some switching operations. He was the head brakeman on a freight train running from Waco to Tyler. His train arrived at Athens in the early morning, some time before daylight. The crew had orders to "pick up" at Athens three freight cars and carry them on to Tyler. The freight cars were standing on a switch track a short distance from the main line. The engine was detached from the train and moved over to the switch accompanied by Hart, the rear brakeman, and Bounds, the head brakeman. Hart went a little in advance, and released the hand brakes on the cars to be "picked up," lined up the air connections, and disconnected the rear car from those to be left standing on the switch track. After a signal from him the engine was backed against the first car for the purpose of making the coupling. This car is referred to by the witnesses as "B. & O. No. 87996." After the impact Bounds went between the tender, and the B. & O. car, presumably for the purpose of connecting the air hose and to open the angle cock on the tender. He came out on the right side of the tender, and passed a signal to the engineer to start. When the engine was moved the tender and car separated; the coupling failed to hold. The separation broke the air-hose connection, and automatically set the brakes on the tender. The engine had moved only a short distance from the B. & O. car. That distance was estimated by the witnesses at from 6 to 10 feet. Bounds then went in between the tender and the car and closed the angle cock on the tender so as to release the air brakes. While in there he was in some way caught between the drawheads of the couplers on the tender and the B. & O. car and fatally injured. He died about an hour later. It appears that the three freight cars were standing on a slight incline sloping toward the engine. Apparently the momentum communicated when the engine was started had set them in motion, and they rolled slowly down toward the tender. The bruises on Bounds' body indicated that he was standing up when the collision occurred, and, in the opinion of some of the witnesses, was facing the tender. Why he was in that position, or what he was doing at the time, are matters of inference only. His injuries were such that he could not make any statement. When the engineer and rear brakeman reached him he had fallen out across the rail on the right side of the track, the side on which he had entered. After the accident, the engine was detached from the three cars and coupled on to the caboose for the purpose of taking Bounds to Tyler for treatment, but he died on the way.

In her amended original petition the appellee alleged that the proximate cause of the injury to Bounds was the failure of the railway company to comply with the federal statute which requires trains engaged in interstate commerce to be equipped with automatic couplers. It is charged that the couplers on the tender and the B. & O. car were both out of order. It is also alleged that the appellant had negligently failed to maintain in good order the air brakes with which the three freight cars were equipped; that under the custom and usage then prevailing among the appellant's employees Bounds was induced to rely and did rely on the sufficiency of the air brakes to hold those cars after the air connection had been severed; and that the failure of the brakes to perform that service was also a proximate cause of the injury.

Special issues were submitted, and the jury found substantially as follows: (1) That the tender of the engine and the B. & O. car were not equipped with couplers capable of coupling automatically by impact without the necessity of the brakeman going in between the ends of the tender and car in order to effect a coupling, and that this defective condition was the proximate cause of the death of Bounds; (2) that the custom and usage of the appellant and its agents were such as to lead Bounds to believe that the air brakes and brake appliances on the three freight cars were intended and maintained for the benefit of Bounds and other brakemen engaged in switching operations, that Bounds acted upon the belief that the brakes were in good order; (3) that the air brakes were defective, due to the negligence of the appellant in failing to make the proper repairs, and such negligence was a proximate cause of the injury to Bounds. The jury also found that Bounds was guilty of contributory negligence. They gave the appellee a verdict for the net sum of $28,000. In disposing of the motion for a new trial the court required her to remit $11,000, and entered judgment in her favor for $17,000. The contention on this appeal is that the evidence is insufficient to support the findings against appellant made by the jury.

It is conceded that the railway company was engaged in interstate commerce at the time Bounds was injured. The federal statute (Act March 2, 1893, c. 196 [U. S. Comp. St. §§ 8605-8612]) requires common carriers so engaged to equip their cars with couplers which, will couple automatically by impact, and which can be uncoupled without the necessity of men going between the ends of the cars. The statute of this state (article 6710, Rev. Civ. Stat.) is substantially a re-enactment of the federal law. It is conceded that the cars in question were equipped with automatic couplers of the kind contemplated by the act of Congress, but it is alleged that one or both of the couplers then being used were out of order. It has been definitely decided that the expression "without the necessity of men going between the ends of the cars," as used in the federal statute, is intended to apply to both coupling and uncoupling operations. Johnson v. S. P. Ry. Co., 196 U. S. 1, 25 S. Ct. 158, 49 L. Ed. 363.

Logically, the first question to be considered is the sufficiency of the evidence to support the finding that either of the couplers involved in those operations was defective. To simplify the inquiry we shall first consider the evidence touching the condition of the coupler on the tender. The engine to which the tender was attached is referred to in the testimony as No. 560, and the train it was pulling on that occasion operated between Waco and Tyler. Tipton, the engineer in charge, testified that when the engine was detached from the train at Athens to do the necessary switching the knuckle on the tender was open, and he felt sure that it was still open when he reached the switch track on which the freight cars were standing. There was nothing, he thought, in the condition of the track over which he passed to cause the knuckle to close. When the signal was given to back against the cars he moved his engine in the usual manner for making such couplings. The track was straight, and the impact, he thought, a proper one under the circumstances. But when he moved forward at a signal from Bounds the coupling failed to hold.

Gandy, a brakeman who took the place of Bounds after the injury, testified that when the crew returned with the engine and caboose from Tyler about 9 o'clock a similar effort was made to couple the tender to the B. & O. car, and it again failed to hold. Here, as on the other appeal, these two failures are relied on to prove that the coupler was defective. On the last trial appellee presented no witness who testified to having made a personal examination of this coupler at the time of the injury or immediately afterward. In connection with this evidence it was shown by appellee's witnesses that when the cars ran together at the time Bounds was caught between the drawheads the coupling was successfully made. Tipton, the engineer, testified that it seemed to him that the cars had been coupled; and Hart, the rear brakeman, stated that they were coupled, and that he uncoupled the tender from the car when they were preparing to carry Bounds to Tyler. Both of these were witnesses called by the appellee. It was also shown without contradiction that this tender and engine were coupled and uncoupled several times that night at Athens when preparing to carry Bounds in the caboose to Tyler, and that the coupling did not fail in any instance, but appeared to be in good condition. The engineer testified on cross-examination that the same engine had pulled the train from Tyler to Waco the day before, and as far as Athens on the return, without any failure of the coupling to hold and without any evidence of a defect; that the crew had occasion to do switching at a number of stations on the route, and to use that particular coupling many times. He also stated that Bounds had done the coupling and uncoupling going and returning, and had made no complaint to him, the engineer, regarding the condition of the coupler; that, if any defect was disclosed, it was Bounds' duty to report to...