Texas Midland R. R. v. Brown

• Decision Date: 30 November 1918
• Docket Number: (No. 8024.)
• Citation: 207 S.W. 340
• Parties: TEXAS MIDLAND R. R. v. BROWN.
• Court: Texas Court of Appeals

207 S.W. 340

TEXAS MIDLAND R. R. v. BROWN.

(No. 8024.)

Court of Civil Appeals of Texas. Dallas.

November 30, 1918.

Rehearing Denied January 4, 1919.

Appeal from District Court, Hunt County; A. P. Dohoney, Judge.

Action by Aubrey Brown by next friend against the Texas Midland Railroad. Judgment for plaintiff, and defendant appeals. Affirmed.

Coke & Coke, of Dallas, Dashiell, Terry & Brown, of Terrell, and S. W. Marshall, of Dallas, for appellant.

B. Q. Evans, of Greenville, and W. A. Shields, of Houston, for appellee.

RAINEY, C. J.

Aubrey Brown, by next friend, appellee, brought this suit against the Texas Midland Railroad to recover damages in the sum of $40,000 for personal injuries. "He alleged that defendant operated a spur track on a steep downgrade going east along and upon Jordan street, and along the south side of a building occupied by Reeves Manufacturing Company, in Greenville, and that it had been the custom of employés of Reeves Manufacturing Company, when they had unloaded the east end of cars of coal into windows provided therefor, to loosen the brakes and cause the car to roll eastward until the coal in the west end was opposite the windows and then to throw on the brakes, stop the cars and finish unloading; that defendant's agents and servants knew of this custom; that on the 24th day of February, 1917, plaintiff undertook to so move a coal car when partly unloaded, and after same was in motion discovered that the brake would not hold, because the pin was out of the cogwheel, making it impossible to stop the car, and, in trying to put some wooden blocks on the rails in front of the wheels, his foot was caught under one of the car wheels, causing the injuries alleged. Defendant answered by general demurrer and general denial, and specially that on the occasion complained of it placed the car alleged to have injured plaintiff, on the side track at Reeves Manufacturing Company's plant, with its wheels scotched with solid blocks, making its position on said track secure, delivered same to the Reeves Manufacturing Company, of which plaintiff was an employé, and had full knowledge of the condition of said car, and the track on which same was situated, and of all conditions alleged to exist, in so far as they did exist, or could have known of them by the exercise of ordinary care, and was guilty of contributory negligence in attempting to move said car and in attempting to stop same under the circumstances alleged." A trial resulted in a verdict and judgment for appellee, from which appellant appealed.

The material allegations of appellee's petition were substantially established.

Appellant presents its first and second assignments together, and complains that the court erred in not giving its special charge to find for the appellant "because the proof showed without contradiction that plaintiff did not use ordinary care to ascertain the conditions of the brake before attempting to remove the car," and "because the uncontradicted evidence shows that plaintiff was guilty of contributory negligence in undertaking to move the car in question on a steep downgrade in a thickly settled portion of Greenville, without knowing the condition of said brake on same, or with knowledge thereof."

As we understand the contention of appellant in its first proposition, it is that the law, under the circumstances, made it the duty of appellee to inspect and examine the defective brake and discover if it was safe before attempting to move the car. The appellee failed to inspect, but undertook to move the car before making an examination. But did the duty devolve on him to make such examination before so doing, or did he have the right to rely on the car being in such a condition as that the brake could be depended upon? We are inclined to the latter view, and that no duty of inspection of the car devolved upon appellee. The evidence shows that he was not warned of any defect in the brake, that he did not know of it, and was innocent of same being out of repair until the car failed to stop by use of the brake. It was customary for the railroad to place cars of coal on that track to be unloaded and it was the custom of employés of the Reeves Manufacturing Company to unload them in the manner that was being employed in this instance, which was known by appellant, and we fail to find any evidence which raises contributory negligence on the part of appellee. Standing on the incline as the car was the appellee knew that if it got from under control and run down the incline it would be apt to collide with some one passing or smash up some property.

The third and ninth assignments relate to the refusal of the court to give special charge No. 3, which reads as follows:

"Gentlemen of the jury: You are instructed that, if the defendant, Texas Midland Railroad, placed the car in question on the side track at Reeves Manufacturing Company's place of business with a defective brake, as explained by the evidence; and if you further believe that the plaintiff was familiar with the use of such a brake, and the extent of the defect and its effect upon lessening his ability to control said car with such brake, if put in motion; and if you further believe that the car was securely placed with blocks under the wheels to prevent its getting away or moving; and if you further believe that the defendant knew of the places of business, wagon yards, street crossings, and persons living along said side track, as alleged in his petition; and if you further believe that the plaintiff was in such a position with reference to said brake as that its condition was obvious and patent to him and right before his eyes; and if you further believe that he had already removed the blocks from under the wheels in a manner occasioned only by his desire to see if the brakes were set so they would hold the car after it was set in motion, and was conscious at the time of the fact that if the brake was not in good condition he could not control the car if it was set in motion, and under these circumstances he ordered the negro to rock the car, and thereby start it — he would be guilty of contributory negligence in not exercising ordinary care involved in looking at said brake, or taking hold of same for that purpose; and, if you so believe, you will find for the defendant. And if you believe from all the circumstances in evidence, including plaintiff's three years' service for Reeves Manufacturing Company, in which a part of his duties were to unload cars of coal on this same side track, and that plaintiff knew, or ought to have known, that it was possible for the brake on this car to be defective in the manner explained in the evidence, and, knowing...