Texas & P. Ry. Co. v. Baldwin

• Decision Date: 31 January 1930
• Docket Number: No. 648.,648.
• Citation: 25 S.W.2d 969
• Parties: TEXAS & P. RY. CO. v. BALDWIN.
• Court: Texas Court of Appeals

25 S.W.2d 969

TEXAS & P. RY. CO. v. BALDWIN.

No. 648.

Court of Civil Appeals of Texas. Eastland.

January 31, 1930.

Rehearing Denied March 14, 1930.

COPYRIGHT MATERIAL OMITTED

Appeal from District Court, Callahan County; J. E. Miller, Special Judge.

Action by C. C. Baldwin against the Texas & Pacific Railway Company. Judgment for plaintiff, and motion of defendant for new trial overruled, and defendant appeals. Affirmed.

T. D. Gresham and R. S. Shapard, both of Dallas, B. L. Russell, of Baird, and Shropshire & Bankhead, of Weatherford, for appellant.

Simpson, Collins & Moore and Leo Brewster, all of Fort Worth, for appellee.

LESLIE, J.

In this cause C. C. Baldwin sued the Texas & Pacific Railway Company to recover damages alleged to have been occasioned him by reason of injuries sustained by him as a proximate result of various acts of alleged negligence on the part of the defendant, its agents and servants. The trial was before the court and jury, and upon answers to special issues a judgment for $20,000 was entered in favor of the plaintiff. Defendant's motion for a new trial was overruled, and it prosecutes this appeal.

The appellee, Baldwin, was a switchman and engine herder in the appellant's railway yards at Baird, Tex. As such employee it was his duty to make up and break up trains coming into that yard and to take engines to and from trains and the roundhouse. In the course of his employment, on the night of February 9, 1928, he (with his crew) took an engine to a point in the east end of the yards and then started north across the tracks to get another engine to take to the roundhouse. While attempting to cross the first track north of the stopping point, he was struck by a caboose, knocked down, and injured.

The appellee charged that one or more of the following acts of negligence, acting either separately or concurrently, was the proximate cause of his injuries: (a) That the handbrakes on both ends of the caboose were defective and inefficient; (b) that the handbrakes on the east end or front end of the caboose were defective and inefficient; (c) that the caboose was, contrary to custom, operated through the yards on a dark night without any character of light or signal on the front end; (d) that the caboose was, contrary to custom, operated through the yard on a dark night without a switchman or other person on the east or front end to warn employees in the yard of its approach; (e) that the caboose was being operated through the yards at a dangerous and excessive rate of speed at the time it struck the appellee.

The appellant answered by general and special exceptions and general denial, plea of contributory negligence, and assumed risk, it being alleged that both appellant and appellee, at the time of the injuries, were engaged in interstate commerce, and that the appellee was merely in the discharge of customary duties in a usual yard movement of engines, had full knowledge of the matters alleged in his petition as constituting negligence, appreciated the dangers thereof, continued in the employment under the circumstances, and therefore assumed the risks of injury arising therefrom.

The appellant bases this appeal upon fifty-eight propositions of law. Those which raise the same questions of law from different angles will be grouped and considered together. It is admitted that the appellant and appellee were, at the time of the injuries, engaged in interstate commerce. The Federal Employers' Liability Act (45 USCA §§ 51-59) is therefore material. There appears to be no controversy over the general principles of law applicable to the facts of the case, and the main contentions involve the existence of such evidence as justified the court in submitting the various issues of negligence to the jury, and whether or not the jury's verdict is supported by the testimony.

Appellant's propositions (a), (b), (c), (d), (e), and (f) are addressed to the action of the trial court in refusing to grant its motion for an instructed verdict. These contentions are that the uncontradicted evidence was that the plaintiff's negligence was the sole cause of his injuries; that the caboose was in a usual yard movement, with efficient brakes; that the employees in charge of the same did not discover the appellee in danger, were under no obligations to keep a lookout or light on the car to warn him of its approach, but had a right to assume appellee, an experienced employee in the yard, familiar with its movements, would keep a lookout for his own safety; that appellee, not being exposed to any unusual danger and familiar with the yard movement and switching of cars and cabooses, assumed the risk of injury from their movement; that, under all the circumstances of the case and the Federal Employers' Liability Act, the appellee assumed the risk of injury.

These propositions raise substantially every major question arising on the appeal, and the different phases of these contentions are presented under other of the fifty-three remaining propositions embraced in the brief. In such cases a more detailed consideration will there be given the questions raised, as well as more particular reference made to the facts found and the authorities relied on. For the present, suffice it to say that a study of this record convinces us that the court did not, for any of the reasons assigned in the preceding propositions, err in overruling the appellant's motion for an instructed verdict.

By reason of their important bearing upon the issues of negligence on the part of the appellant and of contributory negligence on the part of appellee, we now determine the important questions of: (1) Whether there was sufficient evidence to support the findings of the jury that the appellant was negligent in operating the caboose through the railroad yards at night without a light on the east end as a warning, and that such negligence was a proximate cause of appellee's injuries (issues 5 and 6); and (2) whether the evidence was sufficient to support the jury's findings that the appellant was negligent in operating the caboose through the yard at night without a switchman or other person on the front or east end thereof, and that such negligence was the proximate cause of the appellee's injuries (issues 7 and 8).

In considering these propositions (11, 12, 13, 14, 34, 35, 36, and 37) special attention has been given to the question of the sufficiency of the evidence to establish appellee's contention to the effect that at the time of his injuries it was and had been the custom, in switching cars and cabooses through the yard at night, to carry a light or switchman or other person upon the front or east end of cabooses to serve as a warning and protection to employees engaged in the performance of their duties in the yard at the same time. The judgment of the trial court necessarily implies a finding that such a custom existed, and it will be our duty, under this record, to presume, in support of the judgment, such a finding in its favor. To our minds the evidence is sufficient to establish that such a custom had long been established for the benefit and protection of employees working in the yard, as well as for the protection of cars being switched therein. We are further of the opinion that on the occasion of the appellee's injuries appellant disregarded each of the customs and in so doing violated its duty to the appellee, who had a right to rely upon the company's observance of the customs, and the evidence is sufficient to support the jury's verdict that the violation of such rule or custom was in each respect a proximate cause of appellee's injuries.

There is a great volume of testimony, and it would be impossible, as well as useless, to undertake to incorporate any great proportion thereof in this opinion. Substantially it is to the effect that, on the occasion of the appellee Baldwin's injuries, he was an employee in the railroad yards of the defendant at Baird, Tex., a division point. That the yard is large, containing various tracks. Some lie south of the main railway line, which runs east and west through the center of the yard, and others lie north of the main track; all are connected. The first track south of the main line was "South Track No. 1," the next, "South Track No. 2," etc. The first track north of the main line was designated "North Track No. 1," the next "North Track No. 2," etc. The yard slopes from the west to the east, and the tracks run on a decline of approximately 1 per cent., and cars were by force of gravity moved or dropped through the yard from the west to the east end thereof, the same being about three-fourths of a mile distant. At the time of appellee's injuries, there were numerous employees in the yard, and in the discharge of their duties it was necessary for them to cross and walk upon the different tracks. The night was dark, and the appellee was in the discharge of his duties in attempting to cross the track at the time of his injuries. The appellant and its employees knew that the appellee and other employees in the yard might at any time make just such use of the yard and tracks as the appellee was making when injured. That the caboose was being dropped through the yard without light or lookout on the front or east end of the same to warn the appellee or other employees of its approach. The appellee and his crew had taken an engine off a freight train and brought it to a point in the southeast part of the yard, stopping the same on track No. 2. He dismounted from the footboard of the locomotive, went around to the gangway, informed his crew that it would be necessary to go to a point on the north side of the yard to get the other locomotive and bring and attach it to the first, that both could be taken to the roundhouse together. In giving the directions to his crew he was facing south. He then turned to the north; his engine was making some noise. He looked east and west along the tracks,...