Texarkana & Ft. Smith Ry. Co. v. Smith

• Decision Date: 05 March 1925
• Docket Number: (No. 3009.)<SMALL><SUP>*</SUP></SMALL&gt
• Citation: Texarkana & Ft. Smith Ry. Co. v. Smith, 270 S.W. 867 (Tex. App. 1925)
• Parties: TEXARKANA & FT. SMITH RY. CO. v. SMITH.
• Court: Texas Court of Appeals

270 S.W. 867

TEXARKANA & FT. SMITH RY. CO. v. SMITH.

(No. 3009.)^*

Court of Civil Appeals of Texas. Texarkana.

March 5, 1925.

Rehearing Denied March 19, 1925.

Appeal from District Court, Bowie County; Hugh Carney, Judge.

Action by Mrs. Pearl R. Smith, individually, as administratrix, and as next friend of her minor children against the Texarkana & Ft. Smith Railway Company. Judgment for plaintiff, and defendant appeals. Affirmed.

George H. Smith, 23 years of age, employed by appellant as a "telegraph lineman" to assist a gang of men engaged in repairing its line of telegraph along the west side of its line of railway through the Sabine river bottom, near Ruliff, in Jefferson county, was drowned in waters of said river May 20, 1922. This suit for damages for his death was commenced and prosecuted by appellee as the administratrix of his estate, and also by her in her individual capacity, as his widow, and on behalf of their two minor children, as next friend, on the theory that said Smith's death was proximately due to negligence on the part of the foreman (one Morrow) and the assistant foreman (one Hight) of the gang of men engaged in doing the work specified. The appeal is from a judgment in appellee's favor as administratrix for the sum of $21,600.

It was admitted at the trial that the case on its facts was within and that the rights of the parties were determinable with reference to the federal Employers' Liability Act (U. S. Comp. St. §§ 8657-8665).

It appeared from testimony heard, the jury had a right to say, that facts as follows were established: Sabine river ran about east and west, and appellant's line of railway ran about north and south. Ruliff was on the south side of the river, and there were several bridges at places in the bottom between it and the river. It was near the one of these bridges known as "6740," 249 feet long, that Smith was drowned. That part of the river bottom was then under water from an overflow of the river or its tributaries. West of the bridge, and about 30 feet from it, a telegraph pole stood in water 16 to 20 inches deep. On the south side of the pole, and 12 or 15 feet from it, was a deep slough, which ran northeast to and then on under the bridge; and on the north side of the pole, and about the same distance from it, was a deep ditch, which ran southeast to the bridge and on under it. The V-shaped strip of comparatively high land thus formed was 25 or 30 feet wide where the telegraph pole was situated, and between 15 and 30 inches wide at the point thereof nearest the bridge. That point was 2½ or 3 feet from piling supporting the upper part of the bridge. "It," (the V-shaped strip of land) a witness said, "runs to a very sharp point, and on each side of that point it just shoots off right straight down." A few feet back from the sharp point toward the telegraph pole the strip was about 50 inches wide, and a few feet further toward said pole it was 6 or 7 feet wide. The part of the strip forming the bank of the ditch zigzagged "out and in a little bit," a witness said. The water between the point of the strip and the piling was about 5 feet and 8 inches deep. Muddy water from the slough and ditch united in covering the part of the strip between the point thereof and the telegraph pole to a depth of from 16 to 20 inches. The deceased and one Staley, another member of the gang of men, were engaged in "tying in" wires on the insulators on the telegraph poles. In doing that work, deceased tied the wires on one of the poles while Staley tied them on another. It was the custom for the one of them who first finished tying wires on a pole he was working on to move to the next one of the poles in the direction they were going. Working that way, Staley should have gone to the pole mentioned above as standing in water about 30 feet from the bridge, and tied the wires thereon, but Hight, the assistant foreman, directed the deceased to go instead. With reference to his reason for doing that Hight, as a witness, testified that deceased —

"was a younger man than Staley, and wasn't afraid of water, Staley was afraid of deep water, and couldn't swim, and I sent Staley out to the next one and sent Smith (the deceased) out to this pole because he wasn't afraid of deep water and because Staley's watch was broken. Staley had started to take his watch off to give it to Hartley. I first asked Smith if he would take that pole, and Staley started to take his watch off, and Smith told him he would take that pole. I had two things in my mind; one was that some part of Staley's watch was broken, and the other was that Staley couldn't swim and Smith could."

Hight testified further:

"I knew there was deep water around there, I knew there was deep water on each side, in the currents. I knew there was a little knoll out there that wasn't under deep water, but I knew there was deep water north and south of it. I don't know whether the water north of it was over his head or not, but it was deeper there. I don't remember whether I thought the water south of it was over his head or not. * * * Some of them showed Smith how deep it was at the piling. * * * We told him there was deep water on each side."

Deceased at the time was wearing top boots, a safety belt with tools in it, and climbing spurs, together weighing, one witness said, between 20 and 25 pounds, and other witnesses said, about 12 pounds. In going to the pole in obedience to Hight's order, deceased climbed down the bridge piling opposite the point of the V-shaped strip of land referred to, and after getting on the strip waded to the pole and tied wires thereon to the insulators as was expected of him. When he was last seen by any of the witnesses, before he was discovered to be drowning on the east side of the bridge, he had tied the wires on the telegraph pole and, in returning to the bridge, had reached a point about half way between it and the telegraph pole.

Among other instructions to the jury given by the trial court in submitting issues made by the pleadings, and which the court thought were made by the testimony, were those contained in the second, third and fifth paragraphs of the charge, which appellant at the proper time objected to. Those paragraphs of the charge were as follows:

"II. Now if you believe from a preponderance of the evidence that on or about May 20, 1922, that the deceased, Geo. H. Smith, was in the employment of defendant as a telegraph lineman, at or near the railway bridge over the Sabine river near the town of Ruliff, and that while at work near a trestle the said deceased was directed by the foreman or assistant foreman of defendant to work on a telegraph pole standing in the overflow waters of said Sabine river near said trestle, and that along the route to be traveled by deceased in going to or leaving said pole there was a deep depression in the ground underneath the surface of the overflow waters, and that in going to or leaving said pole the deceased stepped into said depression, if any, in said ground and thereby was caused to lose his life by drowning; and if you further believe that the foreman or assistant foreman of defendant knew, or by the exercise of ordinary care could have known, of said depression, if any, in the ground underneath the surface of the overflow waters, and realized the danger, if any, thereof, and if you further believe that said foreman or assistant foreman of defendant, in directing the deceased to perform his work at such place where such depression, if any, existed, was `negligence' as that term has hereinbefore been defined to you, and if you believe that said `negligence,' if any, on the part of defendant's foreman or assistant foreman, was a proximate cause of the death of deceased, then you will find for the plaintiff unless you find for defendant under other portions of this charge, or special charges given.

"III. Or if you believe from a preponderance of the evidence that the foreman or assistant foreman of defendant failed to furnish the deceased with a boat in which to go to and return from said telegraph pole where deceased was to work, and that the said failure, if any, of defendant's foreman or assistant foreman to furnish deceased with a boat was negligence, as that term is hereinbefore defined to you, and you further believe that said negligence, if any, was a proximate cause of the death of deceased, then you will find for the plaintiff, unless you find for defendant under other portions of this charge, or special charges given."

"V. Or if you believe from a preponderance of the evidence that the defendant's foreman or assistant foreman failed to provide the deceased with a line or rope by which he might attach himself to said trestle in going or returning from his work on said telegraph pole, and that said failure, if any, was negligence as that term is hereinbefore defined to you, and that said negligence, if any, was a proximate cause of the death of deceased, then you will find for the plaintiff, unless you find for the defendant under other portions of this charge or special charges given."

At appellant's request, the court also instructed the jury as follows:

"1. As a part of the law by which you will be governed in the decision in this cause, the court charges you that if you believe from the evidence that prior to the time the deceased, George H. Smith, went into the water and out to the telegraph pole on which he was last seen at work before being drowned, the agents or servants of the defendant in charge of its work at said point had made, or caused to be made, measurements of the water at and about the place where George H. Smith went into the same, and from such measurements were led to believe, and did believe, that the water was not of sufficient depth at and about where the said George H. Smith went into the same to endanger the safety of him in going into said water and out to said telegraph pole; and further believe that prior...