Texas & N. O. Ry. Co. v. Echols

• Citation: 27 S.W. 60
• Parties: TEXAS & N. O. RY. CO. v. ECHOLS.
• Decision Date: 14 June 1894
• Court: Texas Supreme Court

27 S.W. 60

TEXAS & N. O. RY. CO. v. ECHOLS.

Supreme Court of Texas.

June 14, 1894.

Error from court of civil appeals of first supreme judicial district.

Action by L. Echols against the Texas & New Orleans Railway Company for personal injuries. A judgment for plaintiff was affirmed by the court of civil appeals (25 S. W. 1087), and defendant brings error. Reversed.

Perryman, Gillaspie & Bullitt, for plaintiff in error. Goldthwaite, Ewing & H. F. Ring, for defendant in error.

BROWN, J.

The Texas & New Orleans Railway Company, jointly with other railroads, owned and operated creosote works near the city of Houston, for the purpose of treating ties. There was a large number of ties in the yard, stacked between two tracks, and extending from near the one to near the other track. The south track was used to carry the ties to the works from the stacks by placing them on trucks or cars for that purpose, taking them from the stacks. The ties were in stacks about eight feet high, one tie upon another. The ties, from bottom to top of the stack, were called a "tier," and each tier was about eight feet long and eight inches wide. When the ties were brought into the yard for treatment, the cars were unloaded from the north track, and stacked, beginning near the south track, and extending back to a point within about four feet of the north track. There were two gangs of hands that worked at night removing the ties to the works, beginning at the south track, and taking them back to the north track. The hands employed on the night before the injury occurred removed all of a stack except about four or five tiers near to the north track, but left that remnant standing without bracing or other security against falling over. A gang of hands to which Echols belonged commenced work to unload a car of ties on the north track on the morning he was injured. Echols was employed on the 1st of March, and was injured on the 3d of that month. He had worked there for two or three months before that time; that is, at a time previous to this employment. Echols and his gang were ordered to push a car down the north track to an opening, and, a train following them, they walked on the side of the car to push it. When he (Echols) got opposite to the remnant of the stack left by the night gang, it fell towards him, and caught him between the car and the ties, breaking his leg. He sued the Texas & New Orleans Railway Company for damages, alleging, among other things, that it was negligent in failing to make and enforce rules to govern the gang removing the ties to the works, in the performance of their work, and especially as to the manner in which remnants of stacks should be secured. He recovered judgment against the railroad company, which was affirmed by the court of civil appeals. The court of civil appeals found, as a conclusion from the evidence, that "the defendant had adopted no rules or precautions for the protection of the men unloading the cars against liability to injury from the falling of the remnant tiers of the stacks, and by which they would be left in a reasonably safe condition."

Plaintiff in error presents a number of objections to the judgment, but we will consider one only, as the others are either not well taken or are embraced in the one considered. Defendant asked the court to give this charge to the jury: "The evidence being insufficient to warrant a verdict for the plaintiff, you will return a verdict for the defendant, the Texas & New Orleans Railroad Company." It was refused. There is no evidence of negligence on the part of the defendant, other than a failure to make rules to govern the hands as to what should be done to secure the remnant of stacks. We must consider this case, under the findings of the court and the manner of its presentation here, as if that finding was fully sustained by the evidence. Whether or not the evidence is sufficient to show a case in which the duty to make rules rested upon the defendant is a question of law for the court. If the facts raised that issue, it should have been submitted to the jury; otherwise it should not. When submitted to the jury, the reasonableness of such regulations is a question for the jury. The rule of law as to when it becomes the duty of the master to make rules for the safety of employes is well stated by Mr. Wood, in his work on Master and Servants, thus: "If a master is engaged in a complex business, that requires...