Texarkana & Ft. S. Ry. Co. v. Toliver.

• Decision Date: 15 December 1904
• Citation: 84 S.W. 375
• Parties: TEXARKANA & FT. S. RY. CO. v. TOLIVER.<SMALL><SUP>*</SUP></SMALL>
• Court: Texas Court of Appeals

84 S.W. 375

TEXARKANA & FT. S. RY. CO. v. TOLIVER.^*

Court of Civil Appeals of Texas.

December 15, 1904.

Appeal from District Court, Jefferson County; W. H. Pope, Judge.

Action by C. R. Toliver against the Texarkana & Ft. Smith Railway Company. From a judgment in favor of plaintiff, defendant appeals. Affirmed.

Greers, Nall & Neblett, for appellant. Smith, Crawford & Sonfield and Lovejoy & Malevinsky, for appellee.

PLEASANTS, J.

This suit was brought by appellee against the appellant to recover damages for personal injuries alleged to have been caused by appellant's negligence. Defendant's answer contains a general denial and special pleas of contributory negligence and assumed risk. The trial in the court below by a jury resulted in a verdict and judgment in favor of plaintiff for the sum of $19,500.

Plaintiff was injured on the 29th day of March, 1902, while in the discharge of his duties as foreman of defendant's switching crew in its yard in the city of Beaumont. There were several switch tracks and one spur track in this yard. Plaintiff was engaged in moving a flat car from the spur track and placing it on one of the switch tracks. This car, which had been placed on the spur track a day or two before, had run off the end of the track; that is, the trucks at one end of the car were off the track and on the ground. This caused an elevation of the end of the car which remained on the track, and, as a consequence, when plaintiff coupled it to the car attached to the switch engine, he had to use a "goose neck" or crooked link. After making the coupling, the cars were moved up the spur track and stoppped on the main track above its intersection with the switch track upon which the flat car was to be placed. The switch having been adjusted so that the car when started back would go upon the proper track, plaintiff signaled the engineer to back up and stop. When the engine moved back he stepped in between the flat car and the coal car to which it was coupled, and drew out the coupling pin. Just as he came out from between the cars he stumbled over a rock which was lying by the side of the track, and in trying to keep from falling he stepped into an open frog, which caught and held his foot until the coal car, which was moving just behind him, struck him, and ran over his leg, thereby causing the injuries complained of. Plaintiff did not know that this frog was not blocked or filled, and did not see the rock until his foot struck it. He could have seen the rock and the open frog if he had been looking for them. He had been in defendant's employment for 2½ years, and was familiar with the yard. It was defendant's custom, during the time plaintiff had been working, for it to keep the frogs in the yard filled with dirt or blocked with wood, and to keep the yard clear of all obstructions. It was the duty of the section crew to keep the yard clear. The member of that crew to whom this duty had been assigned went over the yard at 7:30 a. m. of the day on which plaintiff was hurt, and at that time there was no rock at or near the place at which the accident occurred. Plaintiff was injured about 1:30 p. m., and the rock over which he stumbled must have fallen from a rock train which passed through the yard some time before the accident occurred and after the yard was inspected that morning.

Plaintiff had been sick for a month preceding the accident, and had not been in the yard during that time until he returned to work three days before he was injured. When he was taken sick and quit work in the yard this frog was filled. While he was sick the track at this place had been raised and repaired, but the frog had not been refilled or blocked. Plaintiff had ridden over this track on the front of the engine a number of times during the morning of the day on which he was injured, but did not observe that the frog was not filled. He testified that he could have seen the condition of the frog when he passed over the track if he had been looking down, but his attention was directed to his work, and he had no occasion to look at the track as he passed over it. The flat car and the coal car to which it was coupled were both equipped with automatic couplers, and their appliances were in good order. The position of the car upon the spur track, as before explained, prevented the use of the automatic couplers in the first instance. Plaintiff testified that he did not remove the goose neck and couple the cars with the automatic couplers after he had pulled the flat car back on the track and before he attempted to kick it onto the switch track because the track was down grade, and the brake on the flat car was defective, and would not hold the car, and therefore it could not have been coupled automatically. At the time of his injury plaintiff was 26 years old, and was earning from $90 to $140 per month. His leg was so badly crushed as to require its amputation a few inches below the hip joint. The car which ran over him pressed his leg into the frog between the rails so that it could not be extricated until the rails were taken from the track, and this required about an hour's time. During this time plaintiff suffered the most intense pain. He continued to suffer much mental and physical pain for some weeks, and still at times suffers from his injury, though his general health is now good.

We think this evidence sustains the finding of the jury that appellee was injured through the negligence of appellant in failing to have its yard clear of obstructions and in allowing the frog in which his foot was caught to be unfilled without notifying him of its condition, and that appellee was not guilty of any negligence which contributed to his injury, and did not assume the risk incident to the use of the premises in its unsafe condition. This conclusion of fact disposes of the question raised by appellant's second and third assignments of error.

The first assignment complains of the refusal of the trial court to give the jury the following special instruction requested by appellant: "If you believe from the evidence that plaintiff could with safety have stopped the cars and removed the goose neck or crooked link pin at some other place than where he attempted to cut the cars loose; but that he gave the kick-back signal at the time or before the pin was removed at an unsafe place, you will consider this fact in determining whether the same contributed to his own injury. If it did, and he could have avoided same `by the exercise of reasonable care,' as the same is defined in the general charge, you will find for the defendant." The defendant's answer charged the plaintiff with contributory negligence in failing to remove the goose neck and adjust the automatic coupler before he attempted to kick the flat car onto the switch track. We do not think the evidence...