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

• Decision Date: 08 May 1930
• Docket Number: No. 2432.,2432.
• Parties: TEXAS & N. O. R. CO. v. BELL.
• Court: Texas Court of Appeals

28 S.W.2d 853

TEXAS & N. O. R. CO. v. BELL.

No. 2432.

Court of Civil Appeals of Texas. El Paso.

May 8, 1930.

Rehearing Denied May 29, 1930.

Appeal from District Court, El Paso County; P. R. Price, Judge.

Action by Frank W. Bell against the Texas & New Orleans Railroad Company. Judgment for plaintiff, and defendant appeals.

Affirmed.

Kemp & Nagle, of El Paso, and Baker, Botts, Parker & Garwood, of Houston, for appellant.

Lea, McGrady, Thomason & Edwards, of El Paso, for appellee.

HIGGINS, J.

This is a personal injury case which was submitted to the jury upon the general issue, resulting in verdict and judgment in favor of plaintiff for $25,000 damages, from which the defendant appeals.

The switching movement in which the plaintiff was engaged at the time of his injury was a matter of interstate commerce.

The appellee's theory of the case, as stated in his brief, is substantially correct. With some slight changes it is adopted.

On the night of December 6, 1928, plaintiff was working in the railroad yards in El Paso as a member of appellant's switching crew of which E. W. Mack was foreman. A lead track ran northeast and southwest through the yard, from which at least nine switches branched off westerly. The yard was considerably up grade to the west. Plaintiff was longfieldman; that is, the one to ride cuts of cars back and set brakes on them.

The crew and switching operatives were under the direction of the foreman, Mack. The engine was at the east end of a long string of cars. A cut of cars was shoved in on track 1 or 2. Plaintiff rode them back to proper place and tied them with hand brakes. Then Mack signaled the engineer to pull back east onto the lead and told plaintiff he was going to "kick" a cut of cars in on track 8, which, according to custom, rules, and practice, meant that plaintiff should swing this cut of cars on the way back, climb to the top, and, when the cut had reached the proper place, set the hand brakes, or enough of them to hold it, especially because of this up grade. If not tied with brakes, the cut would roll back east, gain momentum, and cause destruction. So, according to his duty, plaintiff hurried from track 1 southerly to south side of the lead near the junction with track 8. About this time the cut of two or three box cars came back onto 8 at a speed of about fifteen miles an hour. He swung the rear car at the southeast corner and climbed up till half his body was on top, at which time the cut ran into a string of dead cars standing on track 8; the east end being about two car lengths from east end of switch 8, while going about fifteen miles an hour. It threw plaintiff to the ground, injuring him seriously as alleged. Plaintiff had not been in that part of the yard, did not know there were cars on track 8 anywhere near there. It was dark. He could not seem them. It was not his business to do so, nor did he throw the switch for track 8. When Mack told him he was going to "kick" a cut of cars in on track 8, it in effect meant a representation that track 8 was clear of cars and of all obstructions for as great a distance as a cut of cars would run on their own momentum when run in on track 8 at 15 miles per hour, that being the speed allowed by the rules and custom in switching, and that plaintiff must swing and mount the cut and be on top ready to set the hand brakes when the cut stopped or at least when they had gone far enough on track 8; that it was foreman Mack's business to know what part, if any, of track 8 was occupied with cars. If there was only enough space to hold two or three cars, the foreman should not have ordered the cut "kicked" in, but should have ordered the cut "shoved" in; "shoving" in being by a slow motion with the engine attached to the far end of string of cars and under signals of a switchman, the engine stopping the string at the proper place, then the switchman uncoupling the cut from the string. A kick signal is different from a shove signal. To kick a cut means the engine gets up speed, then a switchman pulls the proper pin, the engine stops with balance of string, the cut running by its momentum. A cut of cars run in on track 8 at a rate of twelve or fifteen miles an hour would, on its own momentum, run back seven or eight car lengths. It was dangerous and against the rules and contrary to custom to kick a cut of cars in on track 8 at twelve or fifteen miles an hour where all but two or three car lengths of the space is already full. They should be shoved in slowly under control of the engine.

There is a sharp conflict in the evidence as to some features of the case, but these conflicts were found by the jury in the plaintiff's favor, and, in considering the evidence, it must be viewed in its aspect most favorable to the appellee.

In support of assignments complaining of the refusal of a requested peremptory charge in its favor, appellant presents a number of propositions which assert that the evidence, as a matter of law, shows plaintiff to have assumed the risk. In different forms these propositions in effect assert plaintiff knew the cars were moving at the rate of about fifteen miles, "which is a pretty high rate of speed for cars to be kicked in," for he so testified; wherefore he assumed the risk. The undisputed evidence shows there was barely enough clearance on track 8 to hold the cars kicked on such track. If the evidence showed conclusively that plaintiff knew of this fact when he boarded the cars running at the rate of fifteen miles per hour, appellant's contention would be sound. But the evidence plainly supports the view that Bell did not know of the presence of the cars on track 8 so near the switch as to render a violent impact inevitable. It was the foreman's duty to know there was sufficient clearance upon the track to safely admit of kicking the cars thereon, and, when the foreman told plaintiff he was going to kick the cut of cars on track 8, it amounted to a representation that the track was clear for a sufficient distance to permit the cut to run thereon safely of their own momentum at the speed they were impelled thereon.

The danger was unknown to Bell, and he therefore did not assume the risk. Upon a somewhat similar state of facts in Chicago, R. I. & P. Ry. Co. v. Ward, 252 U. S. 18, 40 S. Ct. 275, 276, 64 L. Ed. 430, it was said: "Applying the principles settled by...