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

• Decision Date: 02 May 1895
• Parties: TEXAS & N. O. R. CO. v. TATMAN.
• Court: Texas Court of Appeals

31 S.W. 333

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

Court of Civil Appeals of Texas.

May 2, 1895.

Appeal from district court, Jefferson county; Stephen P. West, Judge.

Action by Amanda J. Tatman against the Texas & New Orleans Railroad Company for damages for the death of plaintiff's husband. Judgment for plaintiff. Defendant appeals. Reversed.

O'Brien & O'Brien, for appellant. Greer & Greer, for appellee.

WILLIAMS, J.

Appellee based her right to recover damages for the death of her husband, which occurred while he was in the employment of appellant, upon two grounds, viz.: First, that such death was caused by negligence of defendant, in failing to have suitable rules and regulations for the conduct of its operations in its yard at Beaumont to protect its employés against risks such as that to which deceased was exposed; and, second, that such death was caused by the negligence of servants of appellant, who were not fellow servants of deceased, but were vice principals of the defendant.

In the development of her first contention, appellee introduced in evidence a book containing the rules and regulations which had been adopted and published by appellant for the government of its employés, and especially called attention to certain ones which were supposed to bear more particularly upon the point under inquiry. The admission of these rules was objected to by appellant on the ground that they had no application to such work as was being done at the time deceased was killed. Most of the rules, from their own terms, appeared to have no such application; and all of the witnesses testified that none of them had reference to yard work at Beaumont, and that they were not in use there. The ruling of the court admitting the rules is assigned as error. The purpose in thus introducing the rules may have been—First, to show the absence, as alleged, of any provision such as ought to have been made, to guard against such casualties as that in which deceased lost his life; or, second, to show that one or more of the rules did apply, and had been violated by the servants of appellant, and that they were thus guilty of negligence; or, third, to develop that, if none of the rules applied specifically to the situation existing when Tatman was killed, still provision was made for others, wherein the risk was similar, which, by proper care and foresight, ought to have been made to apply to such states of fact as that in question. If none of the rules made such provision against the risk imposed upon Tatman as the company, in the exercise of ordinary care, should have made, the omission could be made to appear by production of the rules, though the more direct and simpler mode of showing the absence of a rule is usually found in the testimony of those acquainted with the subject. On the other hand, if, when the rules were in evidence, any of them appeared to relate to such a situation as that under investigation, it was competent for either party to show that in fact it did not so apply, or that it was adequate or inadequate for the purpose. And if, by any of the rules, safeguards were provided against the dangers arising from conditions similar to those existing when Tatman was killed, which could have been extended so as to apply to the latter, this was a fact for the jury to consider in determining what could and what should have been done by the company to protect its employés, when engaged as Tatman was when killed. We think, therefore, it was proper to inquire into all of the rules which bore upon the issues, as suggested, but in the trial below many of them were dwelt upon which seem to us to throw no light upon the questions under investigation. Another trial can be conducted in accordance with these suggestions without more specific mention of the numerous rules in the record.

The main question arises upon the charge of the court upon the subject of "fellow servants." Tatman was foreman or conductor of a yard or switch engine, having under his control three or four men, whose business was the moving of cars about the yard, the making up and breaking up of trains, etc. There was another foreman, in control of another engine and crew, in the same yard, whose duties were of like character to those of Tatman and his crew. Each was required to work at all points of the yard, and had equal rights, duties, and privileges about the tracks, in the performance of their work. Each was required to look out for the operation of the other, and guard against danger of collisions or conflicts. On the occasion in question, Tatman was riding upon the foremost platform of a caboose which was being pushed along the main track by his engine, when the caboose came violently in collision with a flat car which had been left standing on the track by the other foreman and his crew, and the injuries were thus inflicted which caused Tatman's death. The night was dark, the car stood at an unusual place, and no signal or warning of its presence was given by any one. One of the grounds on which plaintiff sought to recover was that Holzinger, the other foreman, was guilty of negligence, and that he was a vice principal of appellant. The court gave to the jury, in the abstract, the provisions of the...