Texas & P. Ry. Co. v. Kelly

• Decision Date: 09 June 1932
• Docket Number: No. 1564-5905.,1564-5905.
• Citation: 51 S.W.2d 299
• Parties: TEXAS & P. RY. CO. v. KELLY.
• Court: Texas Supreme Court

51 S.W.2d 299

TEXAS & P. RY. CO. v. KELLY.

No. 1564-5905.

Commission of Appeals of Texas, Section A.

June 9, 1932.

Error to Court of Civil Appeals of Sixth Supreme Judicial District.

Suit by B. F. Kelly, Jr., against the Texas & Pacific Railway Company. Judgment for plaintiff was affirmed by the Court of Civil Appeals [35 S.W.(2d) 749], and defendant brings error.

Reversed and rendered.

T. D. Gresham, of Dallas, and King, Mahaffey, Wheeler & Bryson, of Texarkana, for plaintiff in error.

S. P. Jones and Franklin Jones, both of Marshall, and J. A. R. Moseley, Jr., of Texarkana, for defendant in error.

SHARP, J.

B. F. Kelly, Jr., sued the Texas & Pacific Railway Company for damages resulting from personal injuries suffered through its negligence while he was in its employ near Alexandria, La., and rested his right to recover upon the Federal Employers' Liability Act of Congress (45 USCA § 51 et seq.). He recovered a judgment for the sum of $15,000. An appeal was made to the Court of Civil Appeals at Texarkana and the judgment of the trial court was affirmed. 35 S.W.(2d) 749. A writ of error was granted.

The plaintiff in error complains of the action of the Court of Civil Appeals in affirming the judgment of the trial court, because under an agreement by the litigants it was stipulated that Kelly was not entitled to recover only under the Federal Employers' Liability Act; and because the undisputed evidence showed that he was not entitled to recover under that act for the reason that when injured he was not engaged in interstate commerce and was not engaged in any way so nearly connected with or related to interstate commerce as to be a part of such commerce within the scope and purposes of the act.

On the contrary, Kelly contends that the work he was performing at the time he was injured came within the provisions of the act, and that by reason thereof the railroad company was liable for the injuries sustained by him.

Thus the sole question presented for decision is: Was Kelly engaged in work which was a part of interstate transportation at the very time the accident happened in which he received his injuries? If he was not so engaged, then Kelly cannot recover because he brought his action under the Federal Employers' Liability Act and at the trial it was agreed "in this suit that the plaintiff seeks his recovery herein entirely under the provisions of the Federal Employers' Liability Act, and not under the common law, or any statutory law of the State of Texas or the State of Louisiana."

It is undisputed that the main line of the Texas & Pacific Railway Company extends from New Orleans to points in Texas. That the railroad company was engaged daily in interstate commerce over the tracks in controversy. Texmo Junction is a point in the western suburbs of the city of Alexandria where the main line of the Missouri Pacific Railroad intersects the main line of the Texas & Pacific Railway Company. The two railway companies jointly maintain what was called the "Alexandria Terminal." The Texas & Pacific Railway Company owned the double track leading from the Texmo Junction crossing through the terminal yards to and beyond the passenger station at Alexandria.

The following facts seem to be undisputed:

Several weeks before the date of the injury in suit, a crew of workmen, of whom the appellee was one under Mr. McGawan as foreman, had been engaged in erecting, placing in position, and making ready for use, a complete interlocking system of signals in the terminal at Texmo Junction and through the terminal. By means of this complete mechanical apparatus or plant, all trains were to be controlled and managed in passing over the crossings, switch, and yard tracks. The system was shown to add greatly to the safety of railway traffic. At the time of the injury and the placing of this mechanical plant, the trains of appellant and the other railway companies were controlled in their movements over the crossing and switches by means, viz., after the train had come to a stop, the trainman from the train, after seeing that the crossing or track was not to be used by another train, would, by means of a hand-operated switch, turn and set the switch to permit his train to pass on over the crossing, switch, or yard track. The interlocking system of signals being put in was shown to consist of interrelated levers and light, controlled from a tower located at the crossing. It was a system of devices whereby signals denoting the positions of the switches at crossings and track junctions are, by means of locking mechanism, connected with and controlled by the switch mechanism, in such manner that any movement of the switches operates the proper signals to indicate to train operatives the position in which the switch is set. The interlocking levers, or levers connected to the rods running by the tracks, lock the "switch points," or the end of the rails, so that the rails or switch could not inadvertently be thrown or opened while a train is moving over the track. Mr. McGawan, the foreman, says: "A mechanical interlocker is a device so arranged that you cannot run but one train at a time through a certain track. It is upstairs (in the tower house) on a machine. It is locked with locking-bars. It is so arranged that you cannot pull one lever unless all the tracks are lined up and set in the right manner. In pulling a lever, you throw (and set) your switches on the ground. It makes a safety device for trains. The lights are up the track in the proper places. You have a signal lever you use to throw to give the proper light. It has an electrical connection that makes a contact with the other lights. The mechanism of this device is in the tower house, and it is handled by man-power. A man situated in the tower house operates it."

At the time of the injury in suit, the tower house, a three-story building, was built and the interlocker was installed therein. The rods or "pipe line," as termed, leading from the tower house to the points on the track where the switches were located, were all laid and completed, but were not physically connected up or attached to the bridle rods of the switches for operation and control of the switch points or ends of the rails. The required special bridle rods for connecting up the switches had already been placed on the switches. There were five switches to be operated. No new switches or rails were put in. The work done on the switches was such only as attaching rods and insulation plates. The electric appliances and signal stands and light poles to be used in connection with the interlocker had not all been installed but were being installed. The wiring or handing of the rails had been done. No changes had been made or were being made in the roadbed or rails, further than to put new ties, instead of letting the old ties remain under the rails at the switches.

The following is the situation as appears in the testimony of Mr. McGawan, the foreman: "I had charge of putting in the interlocking system. It is in general use all over the country at railway crossings and intersections. It was necessary in putting in this interlocker for us to first install the interlocker in the tower. We (had) built concrete for the pipeline and (had) ran a pipeline on the concrete foundation to all the switches. The signal foundations were all made in Marshall. We had done lots of work on the switches such as putting ties under the pipe plates, erecting signal wire, lights and cables. The interlocker was not connected up with the switch points. The switches were not put into service on account of the signals. You could not work them without the signals. Everything was put up so that you could have connected up the switches, but they were not connected up so that you could use the levers. They were not actually connected. We had not used it and it was not ready to use. The electricity had not been installed. In the tower house all of the electrical appliances had been put in. We were still installing them in the tower house. We were putting in the signals to be used in connection with the interlocker. The man who operated the interlocker also operated the signal lights. The signal lights had not been put in use. We were putting in the concrete foundations for the signal mast or pole when Mr. Kelly was hurt. The mast or pole was to be twelve feet high. That light had not been completed. The wire was on the ground but was not there at this point—all that had to be done to connect the physical mechanism of the various switches and the tower house at the time Mr. Kelly was injured was to actually make a physical connection between the ends of the rods and the switches themselves, and tear away the old switch stands that were there. We had all the material there in position to do that, but did not do so until we got the wiring all in and were ready to turn on the lights. We were erecting a block for a foundation for a mast or pole upon which to place the signal light when Mr. Kelly was injured. We were putting in the blocks and erecting the light poles and finishing the wiring from the tower house to each of these signals."

Mr. Clover, the signalman, testified: "This electrical system was completed and put into operation about two weeks after Mr. Kelly was injured, I would guess. It was for the purpose of controlling the movement of trains in and through the Alexandria terminal and yard."

Mr. Kelly was injured while and during the laying of the foundation for the signal pole near the point where the Texas & Pacific and the Missouri Pacific tracks crossed.

All of the facts above stated appear without dispute.

At the time of the injury, a concrete block weighing about 7,000 pounds was being moved by the use of a tripod to set as a foundation for the electric light or signal pole. He and six other members of his crew under the direction of the foreman were placing in position this concrete block. The block had been...