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

• Decision Date: 03 March 1909
• Citation: 117 S.W. 446
• Parties: TEXAS & N. O. R. CO. v. McCOY.<SMALL><SUP>†</SUP></SMALL>
• Court: Texas Court of Appeals

117 S.W. 446

TEXAS & N. O. R. CO. v. McCOY.^†

Court of Civil Appeals of Texas.

March 3, 1909.

Rehearing Denied March 24, 1909.

Appeal from District Court, Harris County; Norman G. Kittrell, Judge.

Action by Leon McCoy 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. Ewing & Ring, for appellee.

FLY, J.

This suit is based on a claim for damages arising from personal injuries sustained by appellee, an employé of appellant, while engaged in coupling a tender to a locomotive. It was alleged that appellee was employed as an engine wiper in the roundhouse of appellant, in the city of Houston, but that on April 22, 1907, he was directed by his foreman to assist in coupling a tender to a new engine, which had a coupling apparatus consisting of three separate bars which had to be manipulated at the same time in making a coupling, and which could not be accomplished with reasonable safety to the employés without three men being engaged in the coupling, one for each bar; that in endeavoring to hold up the middle and one of the side bars appellee got underneath them, and sought to guide them into the sockets of the engine, and his head was caught between the bars and crushed as they came together. He pleaded his youth and inexperience and ignorance of the danger. Appellant filed a general demurrer and general denial, and pleaded contributory negligence and assumed risk. A trial by jury resulted in a verdict and judgment for appellee in the sum of $9,000.

The evidence shows that appellee, a negro about 21 years of age, was in the employ of appellant as an engine wiper, and was ordered by his foreman to assist in coupling a tender which had three bars, the largest in the middle, to a locomotive. To do this the three bars had to be raised and held so that each would enter a socket in the engine. The bars were rounded at the ends, so that they were smaller there than at other points, and would the more readily enter the sockets. Upon the rounded corners of the ends of the bars striking the sockets they would glide into them, and this would suddenly bring the bars closer together. Appellee, being ignorant and inexperienced in the work of coupling such a tender and locomotive, placed his back towards the tender with his arms under one of the side bars and the middle bars, which were very heavy, and with his head between the bars guided them to the sockets, and when they slipped in they were suddenly brought against appellee's head, inflicting serious and permanent injury on him. He was not warned by the foreman of the dangers incident to the work, although he knew of the inexperience of appellee, and knew of the dangers of the service.

The first and third assignments of error assail the action of the court in refusing to strike out the testimony of J. B. Hanks, who testified that he had been in the railroad business 23 years, during 17 years of which he was a locomotive engineer, and that he was familiar with the construction of engines, locomotive engines and tenders and their coupling appurtenances. He also testified: "I am familiar with the coupling apparatus of these three bar engines." He then explained that the bars were rounded at the ends so that they would enter the sockets, and that when they so entered they would move towards each other with great force, and that no inexperienced man should undertake the task of coupling the tender to such an engine, and that it would take three men to safely perform such a coupling. All of this was testified to without objection; but on the cross-examination it was elicited that the testimony of the witness as to the coupling of three bar engines was based on a coupling he saw made with such an engine after the institution of this suit. Appellant then moved the court to exclude all the testimony of the witness as an expert with reference to the proper method of coupling the three bar engines, on the ground that he was not an expert. The witness on further examination stated that he had seen engines coupled thousands of times, but had only once seen a three bar engine coupled. He further stated: "I would know just as well how to properly make a coupling on this kind of an engine as if I had done it a thousand times. * * * From my experience as an engineer I am able to tell of the dangers and methods of making a coupling on this particular engine; without my experience as an engineer, I could not tell of them. I would not know of them." The witness fully qualified himself as an expert in the coupling of trains. He was skilled in that particular trade, and he could have testified as to the dangers of the peculiar coupling of the engine in question, upon a full description of it, without ever having seen it; and, if it appeared that he was fully acquainted with the mechanism and operation of the peculiar coupling, it would not matter whether he gained his knowledge by having examined it, and having seen it in operation one time or a thousand times. It was a matter pertaining to his trade or calling. The...