Texas & P. Ry. Co. v. Sherer

• Decision Date: 15 January 1916
• Docket Number: (No. 8264.)
• Citation: 183 S.W. 404
• Parties: TEXAS & P. RY. CO. v. SHERER.<SMALL><SUP>*</SUP></SMALL>
• Court: Texas Court of Appeals

183 S.W. 404

TEXAS & P. RY. CO. v. SHERER.^*

(No. 8264.)

Court of Civil Appeals of Texas. Ft. Worth.

January 15, 1916.

On Motion for Rehearing, February 19, 1916.

Appeal from District Court, Tarrant County; R. B. Young, Judge.

Action by F. G. Sherer against the Texas & Pacific Railway Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Thompson & Barwise, of Ft. Worth, for appellant. Alexander, Baldwin & Ridgway and A. J. Power, all of Ft. Worth, for appellee.

DUNKLIN, J.

F. G. Sherer, an employé of the Texas & Pacific Railway Company, and while engaged as a switchman in its yards in the city of Ft. Worth, ascended to the top of one of a string of freight cars, which were in motion at the time, for the purpose of setting the brakes in order to control the movement of the cars, which were then upon a switch track. After setting the brakes, he caught hold of the handhold or grabiron at the top of the ladder, which extended down by the side of the car near one end, for the purpose of descending to the ground. According to his testimony, the handhold gave way and caused him to fall. For alleged injuries resulting from the fall he instituted this suit against the company to recover damages in the sum of $30,000, and from a judgment in his favor for the sum of $11,250, the defendant has appealed.

The petition contained the following allegations:

"Fourth. That said handhold or grabiron was insufficient, defective, loose, or insecure, and directly caused plaintiff's injuries by being in such defective condition, and that it was dark, and the defective condition of said handhold was unknown to plaintiff.

"Fifth. That the statutes of this state required defendant to provide the cars in use on its road and tracks with sufficient and secure grabirons and handholds, and made it unlawful for defendant to use said car without sufficient and secure handholds and grabirons, and that in so using said car defendant was violating the laws of this state.

"Sixth. That under the Acts of Congress of the United States it was unlawful for defendant to use any car engaged in interstate traffic not provided with secure grabirons or handholds, and that said car or some of said cars which were being handled at the time and place of defendant's injury and which were being switched were cars that had come in from points beyond the state of Texas, and were destined to points in other states, and some contained articles of merchandise shipped from or having a destination beyond the borders of the state of Texas, and under the said act of Congress of the United States it was defendant's duty to provide secure handholds or grabirons on said car, which defendant failed to do, and such negligence of defendant thereby directly caused plaintiff's fall and injury, whereby defendant became liable to plaintiff for damages therefor."

Following those there were other allegations, in substance, that his injuries were caused by reason of said defective handhold.

In its answer the defendant, after specially denying the allegation that the handhold was insecure and defective, further alleged that it had no knowledge or information relative to the truth or falsity of the allegations that the cars which were being handled by the defendant at the time and place plaintiff claims to have been injured had come in from a point beyond the state of Texas, and were destined to points in other states, or that any of them contained articles of merchandise shipped from, or having their destination beyond, the borders of the state of Texas, and hence was unable either to affirm or deny those allegations.

The defendant presented to the trial court a petition for removal of the cause to the federal court, upon the ground that it appeared upon the face of the petition that plaintiff was at the time of his injury engaged in the performance of duties pertaining to interstate commerce, and hence jurisdiction thereof was given to the federal court. As a further ground for removal it was alleged that defendant was incorporated under and by virtue of acts of Congress, and for that additional reason the suit is one arising under the laws of the United States. By an assignment of error appellant challenges the correctness of the order overruling that petition.

Section 8618, vol. 4, United States Compiled Statutes 1913, reads:

"On and after July first, nineteen hundred and eleven, it shall be unlawful for any common carrier subject to the provisions of this act to haul, or permit to be hauled or used on its line any car subject to the provisions of this act not equipped with appliances provided for in this act, to wit: All cars must be equipped with secure sill steps and efficient hand brakes; all cars requiring secure ladders and secure running boards shall be equipped with such ladders and running boards, and all cars having ladders shall also be equipped with secure handholds or grabirons on their roofs at the tops of such ladders: Provided, that in the loading and hauling of long commodities, requiring more than one car, the hand brakes may be omitted on all save one of the cars while they are thus combined for such purpose."

By section 8657 of the same statute it is provided that every common carrier while engaged in interstate commerce shall be liable for injury to, or death of, an employé—

"resulting in whole or in part from the negligence of any of the officers, agents, or employés of such carrier, or by reason of any defect or insufficiency, due to its negligence, in its cars, engines, appliances, machinery, track, roadbed, works, boats, wharves, or other equipment."

The statute last mentioned was one of the sections of an act of Congress passed April 22, 1908, and section 8662 of the statutes, which is another section of the same act, reads:

"No action shall be maintained under this Act unless commenced within two years from the day the cause of action accrued.

"Under this act an action may be brought in a [Circuit Court] of the United States, in the district of the residence of the defendant, or in which the cause of action arose, or in which the defendant shall be doing business at the time of commencing such action. The jurisdiction of the courts of the United States under this act shall be concurrent with that of the courts of the several states, and no case arising under this act and brought in any state court of competent jurisdiction shall be removed to any court of the United States."

The petition and bond for removal were filed in the trial court February 3, 1914, and the order overruling the petition bears the same date, while the judgment from which this appeal is prosecuted bears date January 2, 1915.

Section 5 and 6 of an act of Congress enacted January 28, 1915, read:

"Sec. 5. No court of the United States shall have jurisdiction of any action or suit by or against any railroad company upon the ground that said railroad company was incorporated under an act of Congress.

"Sec. 6. That this act shall not affect cases now pending in the Supreme Court of the United States or cases in which writs of error or appeals have been allowed at the date of its approval. And nothing in this act shall be deemed to repeal, amend, or modify the provisions of an act entitled `An act providing for writs of error in certain instances in criminal cases,' approved March second, nineteen hundred and seven."

Act Jan. 28, 1915, c. 22, 38 Stat. 804.

Numerous decisions might be cited to the effect that, as the Texas & Pacific Railway Company was incorporated by act of Congress, suits against it for damages in the sum sought in the present suit were removable from the state courts to the federal court, on the ground that it involved a question of law arising under the federal statute. But, as the employers' liability statute quoted above expressly provides that suits arising thereunder shall not be so removed, and as the present suit was brought under that act, that statute must govern to the exclusion of those decisions, rendered before its enactment. The decision of the United States Supreme Court in the case of K. C. S. Ry. Co. v. Leslie, 238 U. S. 599, 35 Sup. Ct. 844, rendered June 21, 1915, reported in the advance sheets, and which appears in 59 L. Ed. at page 1478, is conclusive of that question in favor of appellee.

Several assignments of error are presented to the admission of testimony of nonexpert witnesses who gave their opinions relative to the physical condition of the plaintiff. One of those witnesses was Chas. A. Hall, who testified by deposition as follows:

"Interrogatory: Please state whether or not he (referring to Sherer) is able to walk as other people do. Answer: No; he is not."

Hall did not qualify as an expert witness, and defendant objected to the question and answer upon the ground that the answer stated an opinion and conclusion of the witness, was argumentative, irrelevant, and prejudicial to the appellant.

Another witness was J. F. Bowyer, likewise a nonexpert, who testified to observation he made of plaintiff's movements on several occasions, and to whom was propounded the following interrogatory:

"State in your own way his appearance and physical condition as it appeared to you when you saw him at different times."

To that interrogatory he answered:

"He appears to me as a man that is absolutely helpless as far as his lower extremities are concerned."

Witnesses H. B. Cornell, Boatwright, and Thomas McMillan, all of whom were also nonexperts, testified to opinions substantially to the same effect as those of the witnesses first named.

Appellant has cited the case of Roth v. Travelers' Insurance Co., 102 Tex. 248, 115 S. W. 31, 132 Am. St. Rep. 871, 20 Ann. Cas. 97, and other authorities in support of its contention that the admission of the opinions of those witnesses was erroneous. We find in the record, however, that testimony of all those witnesses practically to the same effect was admitted in...