Texas & P. Ry. Co. v. Swearingen

• Decision Date: 07 April 1903
• Docket Number: 1,219.
• Citation: 122 F. 193
• Parties: TEXAS & P. RY. CO. v. SWEARINGEN.
• Court: U.S. Court of Appeals — Fifth Circuit

122 F. 193

TEXAS & P. RY. CO. v. SWEARINGEN.

No. 1,219.

United States Court of Appeals, Fifth Circuit.

April 7, 1903

Peyton F. Edwards, Peyton Jas. Edwards, and T. J. Frieman, for plaintiff in error.

R. V Bowden, for defendant in error.

In Error to the Circuit Court of the United States for the Western District of Texas.

W. W Swearingen, the defendant in error, instituted this action in the state court for El Paso county, Tex., from which court it was duly removed by the plaintiff in error to the Circuit Court. The pleadings of the plaintiff below present substantially the following allegations: That the defendant owns and operates a line of railway running into the city of El Paso, where it has tracks and switches constituting a general switch yard for the handling, switching, and shifting of both passenger and freight cars; that on and prior to the 7th day of February, 1902, he was in the employ of plaintiff in error as a switchman, working in its switch yard in the city of El Paso, and his duties were to couple and uncouple cars, shift switches, and assist in the placing, switching and shifting of cars on the various tracks in the switch yard, which cars were moved by means of a locomotive; that he was under the direction and supervision of another servant of plaintiff in error called a 'yardmaster'; that on the 7th day of February, 1902, while engaged in the performance of his duties, he was riding on the ladder on the side of a certain freight car of a train of cars attached to the locomotive, which ladder is placed there for employes to ride on while working, and which train of cars were going in a westerly direction along track No. 2 of the switch yards; that his body was swinging slightly out from the car, in the proper and usual position to ride on the ladder; that the yardmaster was at the east end of the train of cars, directing their movements by means of a lantern, it being in the nighttime, and plaintiff below was looking back for signals, as was his duty, when he came in contact with the scale box structure which had been negligently placed by plaintiff in error or permitted to remain so near the north line of the track as not to permit the passage of his body in the position in which he was riding, and he was thrown to the ground, and dragged along by the cars, and permanently injured; that the scale structure was of a permanent character, and had been at the same place for many months prior to the time he received his injury, and had been placed there and maintained and used by the plaintiff in error, or was permitted to remain there, plaintiff in error knowing, or could have known by the use of ordinary care, the location of it, and it was during all the time so close to the north rail of the track as to endanger the life and limb of defendant in error and other employes while engaged in their duties, and constituted a dangerous obstruction to the track-- all of which was well known to plaintiff in error, or could have been known by the use of ordinary care, but it was unknown to the defendant in error; that in placing the scale structure or permitting it to remain at the place above recited the plaintiff in error was guilty of negligence, and the defendant in error received his injuries by reason of said negligence, for which he claims damages.

The defenses were: First, General demurrer. Second. General denial. Third. The special plea that the defendant in error's injuries were not caused by the negligence of the plaintiff in error; that the scale structure was not erected so near the track as to injure the defendant in error, but that the same was erected in a proper and safe manner, at a safe and proper distance from the track, and that the defendant in error was injured through his own negligence, and the careless manner in which he rode on the cars. Fourth. That, if said scale box structure was erected so near the track as to be dangerous to the defendant in error, he knew it, or could have known it by the use of ordinary care, and assumed the risk arising therefrom, in this: That he had been in the employ of the plaintiff in error, both as a switchman and brakeman, for a long time prior to the accident, and had worked in the yards and on the switches and on the track No. 2, on which he was injured; that track No. 2 is a switch track frequently used by employes of plaintiff in error and used by the defendant in error; that the scale box structure is about six feet high, five feet wide, and it and its location to the track is open, patent, and obvious to the sight--all of which was well known to the defendant in error, or could have been known to him by the use of ordinary care, and by the use of ordinary care he could have avoided the collision with it, and that he was injured through his own 6 negligence. Fifth. That the defendant in error well knew the situation and location of the track scale box in relation to track No. 2, and assumed the risk arising therefrom, and was injured by his own negligence in riding upon the car in the manner in which he rode, and in not using proper care to avoid the collision, he knowing the danger, and that he was approaching the same.

The trial resulted in a judgment in favor of the defendant in error. The plaintiff in error assigns errors, as follows:

'(1) The trial court erred in refusing to permit defendant to introduce in evidence portions of the written application for employment as a brakeman on defendant's railroad, made by plaintiff to defendant on February 22, 1900, as shown by defendant's bill of exception, because said testimony was material to defendant, in this: That the questions asked plaintiff in said application, and the answer made thereto by plaintiff, show that plaintiff had notice of the location of the track scale box, and that he was in danger of being knocked off a car in passing same.

'(2) The trial court erred in overruling defendant's motion to instruct the jury to return a verdict for defendant, because the undisputed evidence established that said track scale box was erected in the defendant's yard and under the circumstances in a reasonably safe place and at a reasonably safe distance and location from track No. 2, on which track plaintiff was riding at the time he was injured.

'(3) The trial court erred in overruling defendant's motion to instruct the jury to return a verdict for defendant, because plaintiff testified he knew of the location of the track scale box, and the location of track No. 2 with reference to said track scale box, on which track No. 2 he was riding at the time he was hurt, and because the undisputed evidence shows that the track scale box and the danger of same was open and obvious to the view of plaintiff, and that neither the track scale box nor the dangers thereof were hidden or latent, and plaintiff was presumed to know the danger and assume the risks thereof.

'(4) The trial court erred in overruling defendant's motion to instruct the jury to return a verdict for defendant for the reason that the entire and uncontroverted testimony established the fact that plaintiff knew of the location of the track scale box, and location of said track No. 2 with reference to said track scale box, on which track he was riding at the time he was hurt; and that the track scale box and the dangers of the same were open and obvious to the view of plaintiff, and not hidden or latent, and plaintiff was presumed to know the dangers and assumed the risks.

'(5) Because the trial court erred in the following portion of its charge to the jury: 'The defendant claims that the plaintiff knew of the existence and location of the scale box with which he came in contact, and that by continuing in the work with such knowledge he assumed all risks incident to and arising out of his employment. Upon this point you are instructed that if you believe from the testimony that prior to the plaintiff's injuries he knew of the existence and location of the scale box, and of the danger incident to the discharge of his duties while passing the same on a moving train, if danger there was; or if, knowing of the location of the structure, the danger to the employes while in the usual discharge of their duties was apparent-- that is, open to observation-- then you are instructed that the plaintiff, by continuing in the employment of the defendant without complaint, assumed such risks, and he would not, therefore, be entitled to recover. In this connection you are further instructed that the mere fact that the plaintiff knew of the existence and location of the scale box would not, as a matter of law, charge him with knowledge of the danger, if such there was, due to its proximity to the north rail of track No. 2; and whether he knew of the danger is a question of fact for you to determine from a consideration of all the facts and circumstances in evidence.' Because the proof showed that plaintiff knew of the location of the track scale box and of track No. 2, on which he was riding at the time he was hurt, in reference to said scale box, and that the same and the location thereof was open and obvious to plaintiff's view, and, being an experienced brakeman, he was charged with notice that riding on the cars as he did was dangerous, and he assumed the risks thereof, and the court should have so charged the jury.'

Before PARDEE, McCORMICK, and SHELBY, Circuit Judges.

McCORMICK Circuit Judge (after stating the facts as above).

The first error assigned is not well taken. The bill of exceptions to which it refers says that at a certain stage of the trial the defendant produced and showed to the plaintiff his written application for employment as a brakeman, signed by him, and dated February 22, 1900. The plaintiff testified that he had read...