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

• Decision Date: 30 March 1905
• Citation: 86 S.W. 5
• Parties: ST. LOUIS SOUTHWESTERN RY. CO. OF TEXAS v. POPE.
• Court: Texas Supreme Court

86 S.W. 5

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

Supreme Court of Texas.

March 30, 1905.

Error to Court of Civil Appeals of First Supreme Judicial District.

Action by James M. Pope against the St. Louis Southwestern Railway Company of Texas. Judgment in favor of plaintiff (82 S. W. 360), and defendant brings error. Reversed.

E. B. Perkins and Marsh & McIlwaine, for plaintiff in error. Johnson & Edwards, for defendant in error.

BROWN, J.

James Pope sued the St. Louis Southwestern Railway Company of Texas to recover damages for personal injuries sustained by him, alleged to be due to the negligence of the company. A trial by jury resulted in a verdict and judgment for plaintiff, and defendant has appealed.

The facts are as follows: Plaintiff on the occasion in question was an experienced brakeman in the service of defendant, and was familiar with its line, sidings, rules, and customs. At a station on appellant's line called "Mt. Pleasant" there were five side tracks called "storage tracks." These were not used for the placing of cars for loading or unloading, but were designed and used for the storing of cars by incoming trains to be incorporated in subsequent outgoing trains. There was in force at the time in question the following rule, which had been promulgated by the company: "Conductors must see that brakes are set on cars they leave on sidings, and when the siding is on a grade, they must, when practicable, couple all the cars together; and in addition to setting the brakes the wheels must be blocked and safety switches properly adjusted. When not in use safety switches must be left open. In switching, trainmen must know that brakes are in good order before cutting off cars." As to whether it applied to the sidings at Mt. Pleasant the evidence is conflicting, but is ample to sustain the finding not only that the sidings at that point were upon such a grade as came within the purview of the rule, but that they had been so regarded by the company and its employés. At sidings not on a grade, or where it was necessary to place or "spot" cars for the convenience of those whose duty it was to load and unload them, the rule did not apply. At the date of the accident plaintiff came in on a freight train containing 28 cars. When they reached Mt. Pleasant it became necessary to back in on one of the storage tracks to store some cars. In doing this it was proper to back the train against a string of cars already on the siding, and push them toward the opposite end of the siding. Plaintiff occupied the position of rear brakeman on the train, and it was his duty to remain at the rear end of the train, to see that the coupling was made when the train touched the standing cars, to mount the standing cars, to walk on top of them to the rear end of them (that is to say the end farthest from the engine), to see that the brakes were set, and to signal the engineer when they had been pushed far enough. It was the duty of the middle brakeman to signal the engineer to back up in pushing the cars in, and to transmit to him the signal of plaintiff when the cars had been pushed far enough. When the train in question entered the siding, plaintiff occupied a position at its rear. When it came in contact with the standing cars, he coupled the train to the nearest car, and the engineer proceeded to push them in the same direction. Plaintiff immediately climbed upon the nearest standing car, and, assuming them all to be coupled together, as they appeared to be, proceeded to walk to the rear in the discharge of his duty. When he reached the opening or space between the second and third cars from the end the engineer suddenly stopped the engine, causing the last two cars, which were not coupled to the others, to separate from the train and continue their motion. The train was stopped and the separation occurred on the instant that plaintiff was about to step from the third to the second car to the last, and he fell through the space thus made to the ground, injuring him as alleged. As the part of the train attached to the engine was stopped instantly, it did not run over plaintiff, his injuries being due entirely to his fall.

There is evidence to support the finding that the train was moving at the rate of four to six miles an hour, and that without warning and without slowing down it was instantly brought to a standstill. This was not done at the signal of plaintiff, but in response to a signal of the middle brakeman. The coupling apparatus on all the cars was automatic, and in good condition, but the lever on the coupling where the separation occurred was left fastened up, so that it could not be coupled by mere contact. The cars on the...