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

• Citation: 297 S.W. 321
• Decision Date: 21 April 1927
• Docket Number: (No. 8977.)
• Parties: TEXAS & N. O. R. CO. v. HAWTHORNE.<SMALL><SUP>*</SUP></SMALL>
• Court: Court of Appeals of Texas

297 S.W. 321

TEXAS & N. O. R. CO. v. HAWTHORNE.^*

(No. 8977.)

Court of Civil Appeals of Texas. Galveston.

April 21, 1927.

Concurring Opinion April 26, 1927.

Rehearing Denied May 17, 1927.

Second Motion for Rehearing Denied June 2, 1927.

Appeal from District Court, Harris County; Roy F. Campbell, Judge.

Action by Ray R. Hawthorne against the Texas & New Orleans Railroad Company. From a judgment for plaintiff, defendant appeals. Reversed and rendered.

Garrison & Watson, of Houston, for appellant.

Charles Murphy and John W. Parker, both of Houston, for appellee.

LANE, J.

Ray R. Hawthorne brought this suit against the Texas & New Orleans Railroad Company to recover the sum of $30,000 for damages alleged to have been suffered by him by reason of the negligence of the railroad company.

In the plaintiff's first amended petition, upon which he went to trial, he substantially alleged: That on the 2d day of September, 1925, plaintiff, while in the employ of the defendant as a brakeman on a freight train operated by defendant on its said railway, and while in the regular performance of his duties, was on top of one of defendant's freight trains, near the head thereof, and, while passing through the switch limits of a station on said railway, namely, Tulane, the engineer or fireman operating the engine drawing the said train cast sand into the fire box on the engine for the purpose of forcing the sand through the flue of the engine and out of the smokestack, cleaning out the flues of soot and other matters accumulating therein; that the sand passing out of the smokestack struck plaintiff in the face, entering his eye, greatly injuring same; that, at the time he was injured, the train on which he was a brakeman was destined to points in the state of Louisiana; and that he, as well as the Texas & New Orleans Railroad Company, was engaged in interstate commerce.

The particular allegations of negligence were:

(1) That the engineer or fireman placed the sand in the fire box at an unusual time and place, namely, within or just opposite the station limits of the station of Tulane.

(2) That the said engineer or fireman cast sand into the fire box as aforesaid without notice or warning to plaintiff of their intention to do so, knowing at the time that plaintiff was in a position to be exposed to the dangers of the sand, soot, and other matters injuring his eyes.

(3) That the defendant company was negligent, in that it had failed to adopt and promulgate a rule requiring the engineer and fireman to give notice or warning by appropriate signals, namely, by word of mouth, by the whistle of the engine, by the bell thereon, by displaying or waving a flag by day, or a light by night, or by all or any two thereof in combination, or by other means or in other manner, which were well known, or should be well known to defendant, and unknown to the plaintiff; that the time and place when and where the engineer or fireman would place sand into the fire box of the engine for the purpose of cleaning out the flues was unknown to the brakeman on the train, and in the nature of things could not be known by him in the exercise of due diligence on his part; that, when sand was placed in the fire box, it passed through the flues out of the smokestack, the particles of sand becoming red hot, would blow back in the opposite direction to which the train was moving, striking the plaintiff and other brakemen, who might be on top of the train, and, not having any knowledge as to what particular time or place the sand would be placed in the fire box, they were unable to protect themselves against danger; that the defendant was engaged as a common carrier by its said railroad in commerce between the state of Texas and the state of Louisiana and other states and territories and the District of Columbia, and "the plaintiff was at said time employed by defendant in such commerce."

The defendant in its amended answer filed (1) a general demurrer and general denial; (2) plea of contributory negligence; and (3) defendant specially pleaded: That it was engaged in interstate commerce at the time plaintiff claims to have been injured; that it had promulgated no rules whereby the plaintiff was warned of any particular time or place where sand would be placed in the fire box for the purpose of cleaning said flue; that the danger of plaintiff being injured by hot particles of sand that would escape through the smokestack was known to the plaintiff and had been known to him for some time prior to the time of the accident; that, under the federal Employers' Liability Act (U. S. Comp. St. §§ 8657-8665), the plaintiff's injuries were the result of one of the risks assumed by him ordinarily incident to the business in which he was engaged; that the plaintiff not only assumed the ordinary risks incident to the business in which he was engaged, but also assumed risks growing out of the negligence of the defendant company, its agents, servants, or employees of which he had knowledge or which was plainly observable to him; that, if the defendant had not promulgated any rules warning its employees of the time and place when sand would be placed in the fire box, said fact was fully known to the plaintiff at the time and long prior to his injuries, and by reason of said facts the plaintiff assumed the risk which under the federal Employers' Liability Act was a complete bar to plaintiff's cause of action.

The case was submitted to the jury upon special issues. In connection with such issues the court correctly defined the terms "negligence," "contributory negligence," and "proximate cause." Special issues Nos. 1 to 8, inclusive, are as follows:

"Special issue No. 1. Did or did not the method employed by defendant for cleaning the flues of its locomotives while running on its road by forcing sand through the same and out of the smokestack expose its train employees or any of them while serving on such trains to the risk of injury of their eyes by the said sand coming in contact therewith? Answer `It did' or `It did not.'

"Special issue No. 2. If you answer the preceding issue `It did,' then could defendant have established a signal to be given by the whistle on the engine which would have advised the train employees of the intention of the engineer or fireman to put the sand through the flues for the purpose of cleaning them while the train was in motion? Answer `It could' or `It could not.'

"Special issue No. 3. If you answer the preceding issue `It could,' then was it the duty or was it not the duty of the defendant, in the exercise of ordinary care, to adopt and enforce a rule prescribing a signal by whistle to be given by the engineer or fireman in advance of putting the sand through the flues, for notice to the trainmen, including the head brakeman? Answer `It was' or `It was not.'

"Special issue No. 4. If you answer the preceding issue `It was,' then was the failure of defendant to adopt and enforce such a rule negligence? Answer `It was' or `It was not.'

"Special issue No. 5. If you answer the preceding issue `It was,' then was or was not such negligence a proximate cause of the injury of plaintiff? Answer `It was' or `It was not.'

"If you have answered each of the foregoing special issues in the affirmative, then you will proceed to answer the following special issues; but, if you have not answered each in the affirmative, then you will without further consideration return your verdict into court.

"Special issue No. 6. Was or was not plaintiff guilty of contributory negligence by being at the place he was or by facing the locomotive as he did or in any other manner? Answer `He was guilty of contributory negligence' or `He was not guilty of contributory negligence.'

"Special issue No. 7. Did or did not the plaintiff assume the risk of injury? In connection with this issue you are instructed that, if you have answered issues Nos. 1 to 5, inclusive, in the affirmative, then, in order to find that the plaintiff assumed the risk of injury to his eye, he must have known that the engineer or fireman was going to put the sand through the flues at the time it was done, or must have acquired the knowledge of the fact while it was being put through, in time, by the exercise of ordinary care on his part, to have protected his eyes against injury from the sand. Answer `He did not assume the risk' or `He did assume the risk.'

"If you answer the preceding issue `He did not assume the risk,' and have answered special issue No. 6 `He was not guilty of contributory negligence,' then you will answer the following:

"Special issue No. 8. What amount of money, paid in cash at this time, would fairly and justly compensate plaintiff for the injury, if any, he sustained? In answering this issue, you are instructed that the measure of such damages is that sum of money which, if paid in cash at this time, would fairly and justly compensate the plaintiff for the injuries pleaded by him, and which you find from the evidence he sustained, if any; and in arriving at such sum of money, you will take into account the mental and physical pain suffered by him as a result of such injury, if any, the earnings lost by him on account of such injury to this time, if any, and the impairment of his ability to earn money in the future on account of such injury, if any. In connection with the foregoing, you are further instructed, with respect to the assessment of damages, that, if you have answered special issue No. 6 `He was guilty of contributory negligence,' then the plaintiff would not be entitled to full damages, but only a proportional amount bearing the same proportion to the full amount as the negligence attributable to defendant bears to the entire negligence attributable to defendant and the plaintiff, and in such case you will assess the plaintiff's damages accordingly. Let your answer be in dollars and cents as you find the facts to be. Of course, if the finding is that plainti...