Texas & N. O. R. Co. v. McDonald
| Decision Date | 15 May 1909 |
| Citation | 120 S.W. 494 |
| Court | Texas Court of Appeals |
| Parties | TEXAS & N. O. R. CO. v. McDONALD. |
Appeal from District Court, Harris County; Norman G. Kittrell, Judge.
Action by Ed McDonald against the Texas & New Orleans Railroad Company. From a judgment for plaintiff, defendant appeals. Affirmed.
Baker, Botts, Parker & Garwood, and Lane, Jackson, Kelley & Wolters, for appellant. R. R. Hazelwood and Lovejoy & Parker, for appellee.
This is a suit to recover damages for personal injuries brought by appellee against appellant. There was a former appeal in the case, the opinion of the Supreme Court on said appeal being reported in 99 Tex. 207, 88 S. W. 201-203. The second amended petition upon which the trial was had from which the former appeal was taken, after alleging that plaintiff was injured on July 24, 1903, while in the employ of one Shea, a contractor who was unloading gravel from cars on a siding of defendant road in the city of Houston, by being struck and run over by said gravel cars which were suddenly put in motion by the employés of defendant backing an engine on said siding and striking such gravel cars, contains the following allegations of the negligence relied on to entitle plaintiff to recover for the injuries received by him: "That plaintiff was struck and injured as aforesaid as the direct and proximate result of the negligence and carelessness of the defendant, its servants and employés, in this; that the said siding was not generally used by defendant at the time in question, and for a year or more prior thereto had been devoted almost exclusively to handling cars containing gravel hauled by defendant for said Shea and others; that the defendant had in force at the time a rule or order forbidding its servants and employés to back any engine or cars against cars standing upon said siding for unloading without first giving warning to any persons who might be engaged in the work of unloading such cars, and without first ascertaining that no person connected with the work of unloading them was in a position of peril should the cars be suddenly moved, which said rule or order was well known to said servants and employés in charge of said engine; * * * that the said siding was located in a public street; that it was, and for more than a year had been, the practice and custom of laborers engaged in the work of unloading cars on the said siding, and of other persons working in the neighborhood of said siding at the noon hour, to eat their meals and rest near to and beneath the said cars, in the shade thereof, believing they were safe in so doing; and it was the custom and practice of children in the neighborhood of the said siding at the said time and for a long time prior thereto to play upon and beneath the said cars, all of which facts were well known to said defendant and its servants and employés in charge of said engine, and said servants and employés, so knowing of the said rule and order and of said practice and custom, and knowing that at the time plaintiff and his fellow laborers were probably eating their dinners, or resting near to or beneath the said cars, and might be in positions of peril, should the cars be suddenly moved, without warning or notice ran the said engine against the said cars, without ringing the bell or sounding the whistle, or giving any warning or notice whatever, and without using any care to ascertain whether plaintiff and his fellow laborers were or were not in positions of peril should the cars be suddenly moved; that had the said servants and employés looked, as it was their duty to do, they could and would have seen plaintiff and his fellow laborers, and could and would have seen that they were in positions of peril should the said cars be suddenly moved without warning; that had the bell been rung or the whistle sounded, or any other signal given, plaintiff could and would have discovered the approach of said engine and cars and have escaped injury, and plaintiff further says that his said injury was not the result of any negligence on his part, but, on the contrary, he was in the exercise of ordinary care under the circumstances." After the return of the mandate on the former appeal, the plaintiff on December 16, 1907, filed a third amended petition, which contains, in addition to the allegation of negligence contained in the second amended petition, the following allegations: "The said servants and employés in charge of and connected with the said engine, well knowing that at the time plaintiff and his fellow laborers were probably eating their dinners, or resting near to or beneath the said cars, and were probably in positions of peril should said cars be suddenly moved, and seeing plaintiff seated by the side of one of said cars and realizing the danger to which he would be exposed should the said car be suddenly set in motion, nevertheless carelessly and negligently backed and caused to be backed the said engine and cars with great force and violence against the cars, between McKee and Hardy streets, and thereby setting the said cars in sudden motion and injuring plaintiff as above stated." The defendant's answer contains a special exception raising the question of limitation as to the additional allegations of negligence contained in the petition before set out. Further answering, the defendant denied all of the allegations of the petition, and specially pleaded limitation of two years as to plaintiff's right to recover on the grounds of negligence alleged for the first time in the third amended petition. It also pleaded contributory negligence on the part of plaintiff. The trial by a jury in the court below resulted in a verdict and judgment in favor of plaintiff in the sum of $7,500.
The evidence shows that at the time plaintiff was injured he, with a number of others, was in the employment of Mr. Shea, a contractor engaged in laying pavements in the city of Houston. The gravel used in making this pavement was hauled to Houston by the appellant road, and the cars loaded with gravel were placed for unloading on a siding of defendant road on Burnett street in said city. This street extends from west to east through the northwestern portion of the city. The yards of appellant road are situated at the western end of the street, and extend eastwardly along the south side of said street a distance of several blocks. These yards are inclosed with a high fence against which the west end of Burnett street abuts. The siding upon which plaintiff was injured leaves defendant's main track in the yards and extends along Burnett street for a distance of about 300 yards, passing through a gate in the fence before mentioned. The east end of the siding is near Hardy street, which crosses Burnett street at right angles. Between Hardy street and the gate before mentioned Burnett street is crossed at right angles by McKee, Chapman, and Gano streets in the order named. These streets are each 60 feet wide and are about 300 feet apart. The east end of the siding is about 35 feet west of the west line of Hardy street.
On the day plaintiff was injured and for a day or two prior thereto, he and a number of other employés of Mr. Shea was engaged in unloading gravel from a train of 10 or 12 cars which had been placed on said siding to be unloaded. When the cars were placed on the siding, the train was cut so that none of the streets crossing the siding would be blocked. The evidence is conflicting as to the number of cars east of McKee street; the number fixed by the witnesses varying from three to six. At the time plaintiff was injured, he and the others engaged in unloading the cars had stopped work for dinner, and plaintiff and two others were eating their dinner or resting in the shade on the south side of the second car from Hardy street. Plaintiff was sitting on the end of a tie about the middle of the car facing east. While in this position, and engaged in conversation with his companions, the car under which he was sitting was put in motion by an engine which came out of defendant's yards through the gate before mentioned, and took up the cars west of McKee street, which had been unloaded, and pushed them across said street, and against those connected with the one under which plaintiff was sitting. This movement of the cars was so sudden and unexpected that plaintiff was struck by the car beneath which he was sitting, and both of his legs were so crushed that it became necessary to amputate them.
The evidence justifies the finding that the operatives of said engine failed to ring the bell or blow the whistle or give any warning that the engine was approaching, or that any movement of the cars was to be made.
J. W. Buttermore, the field brakeman working with the train crew that was operating the engine and cars by which plaintiff was injured, testified, in substance, that on the occasion in question he went ahead of the engine when it came out of the yards to remove the empty cars from the siding, and opened the gate at the head of Burnett street to let the engine through, and then walked along down said street on the north side of the track until he reached the east side of McKee street, where he stopped and waited for the engine, which in the meantime had taken up the cars west of said street; that he was at no time on the south side of the siding, and did not go further down on the north side than 45 feet east of McKee street; that, when the engine with the empty cars approached McKee street, he was standing at or near the McKee street crossing and signaled the engineer to come on, and went in and made the coupling to the cars east of said street; that he had not seen appellee and did not know, and had no reason to suspect, that he or any one else was under or near the cars until after the coupling was made and appellee had been injured.
All of the evidence shows that none of the other members of the crew...
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