Texas & N. O. R. Co. v. Mortensen

• Citation: 66 S.W. 99
• Parties: TEXAS & N. O. R. CO. v. MORTENSEN.<SMALL><SUP>1</SUP></SMALL>
• Decision Date: 29 November 1901
• Court: Texas Court of Appeals

66 S.W. 99

TEXAS & N. O. R. CO. v. MORTENSEN.¹

Court of Civil Appeals of Texas.

November 29, 1901.

Appeal from district court, Harris county; Chas. E. Ashe, Judge.

Action by Chris. Mortensen against the Texas & New Orleans Railroad Company for personal injuries received by plaintiff while an engineer in the employ of defendant. From a judgment in favor of plaintiff, defendant appeals. Affirmed.

Baker, Botts, Baker & Lovett, and A. L. Jackson, for appellant. Fisher, Sears & Sherwood, and J. R. Norton, for appellee.

GARRETT, C. J.

This action was brought in the district court of Harris county by Chris. Mortensen, as plaintiff, against the Texas & New Orleans Railroad Company, as defendant, to recover damages for personal injuries received by the plaintiff in the collision of a freight train drawn by a locomotive operated by the plaintiff, as engineer, with the rear end of another freight train on defendant's track at Sour Lake station. The petition alleged that the collision and injuries were the result of the negligence of the defendant, in the failure of its employés in charge of the train in front to comply with certain rules of the defendant adopted for the operation of its trains. These rules were set out in the petition, and it was alleged that the violation of each of them caused or contributed towards the injuries of plaintiff. After general demurrer and general denial, contributory negligence was specially pleaded by the defendant, and that (1) plaintiff fell asleep, or through other inattention failed to keep a lookout for signal or other lights; (2) by the exercise of ordinary care, he should have known that signals were displayed at Sour Lake station to slow up and stop his train, and that he disregarded such signals; (3) he disregarded rule 328, which was set out, requiring freight trains to approach and pass all stations carefully and under full control, expecting to find the main track inside of the yard-limit bounds occupied by trains doing work; and (4) he permitted his locomotive to enter the yard at Sour Lake without giving any signals, and without controlling or attempting to control the locomotive, although it had been customary for such trains to stop at the station for water, and plaintiff knew or ought to have known of such custom. There was a trial by jury, which resulted in a verdict and judgment in favor of the plaintiff for $8,500.

The injuries complained of in the petition were received, as alleged, on December 10, 1899, about 3 o'clock a. m., in a collision between two freight trains on the defendant's railroad at Sour Lake station, and the plaintiff sustained damages to the amount for which he recovered judgment. The colliding trains were sections 1 and 2 of No. 246, and both were running east from Houston. Plaintiff was in the employment of the defendant as a locomotive engineer, and was in charge of and operating the engine drawing section 2. Section 1 left Houston about 7 o'clock p. m. December 9th, and section 2 left an hour later. There was no train between them. At Liberty, a station 21 miles west of Sour Lake, section 2 came in sight of section 1, but waited there until a helper engine pushed section 1 over a grade called "Ames' Hill," about 16 miles west from Sour Lake, and returned to Liberty to help plaintiff's train over, which put section 1 from 45 to 55 minutes ahead of section 2. At Sour Lake station was a water tank about 125 feet west of the depot building, and a cattle guard a little over 1,000 feet west of the water tank. There were sidings extending both east and west from the station. The track is straight west of Sour Lake for several miles. Plaintiff's orders gave him the right of way into Sour Lake station, and a free track to the station and for three-fourths of a mile beyond. He testified: "I kept a proper lookout all the time prior to the collision, and on the engine with me was the fireman of my locomotive, and also the head brakeman of our train, who was also on the engine. There was a curve about two and a half miles east of Devers, and when I turned the curve at Devers there was still no train in sight ahead of me. When I got to the mile board west of Sour Lake station I put my head out of the window to look for the station, and I told the fireman that I was going to stop at the station to get water. I had a heavy train, and I saw the red station light. The station light is a reversible light, and always shows red until reversed. There were no other lights displayed at the station, or indicating the presence of a train near the station, and if there had been I could have seen them. Just about that time the fireman was about to put in more coal into the fire box of our engine. He was a green hand, and he was unnecessarily using a great deal of coal. I turned around toward him and sought to attract his attention by motioning my hand in order to check him from putting in more coal. I was thus occupied for some five or six seconds, and then turned and put my hand on the throttle to shut off steam, when my engine struck the caboose or hindmost car of section No. 1." Section 1 was standing still on the main track, with its caboose just west of the cattle guard. Determining the conflict in the evidence by giving proper effect to the verdict of the jury, we find that plaintiff had his train under control, and was using due care in approaching the station, and that the collision occurred without fault or negligence on his part, but was the result of the negligence of the defendant's employés in charge of section 1, in failing to give the signals and setting the lights on the rear end of the caboose as required by the rules of the company. The following are the rules of the company the disobedience of which by its employés was alleged in the petition to have been negligence on the part of the defendant, from which plaintiff's injuries resulted. They were put in evidence by the plaintiff.

"(97) When a freight train is detained at any of its usual stops more than three minutes, where the rear of the train can be plainly seen from a train moving in the same direction at a distance of at least fifteen telegraph poles, the flagman must go back with danger signals not less than one pole and as much further as may be necessary to protect his train; but if the rear of his train cannot be plainly seen at a distance of at least fifteen telegraph poles, or if it stops at any point that is not its usual stopping place, the flagman must go back far enough to be seen from a train moving in the same direction when it is at least fifteen telegraph poles from the rear of his own train, and if his train should be detained until within ten minutes of the time of a passenger train moving in the same direction he must be governed by rule 99."

"(34) Each train running after sunset, or when obscured by fog or other cause, must display the headlight in front, and two or more red lights in the rear. Yard engines must display two green lights, instead of red, except when provided with a headlight on both front and rear."

"(2...