Texas & P. Ry. Co. v. Wylie

• Decision Date: 29 January 1931
• Docket Number: No. 984.,984.
• Citation: 36 S.W.2d 238
• Parties: TEXAS & P. RY. CO. v. WYLIE.
• Court: Texas Court of Appeals

36 S.W.2d 238

TEXAS & P. RY. CO. v. WYLIE.

No. 984.

Court of Civil Appeals of Texas. Waco.

January 29, 1931.

Rehearing Denied March 5, 1931.

Appeal from District Court, Tarrant County; F. P. Culver, Jr., Judge.

Suit by Mrs. M. C. Wylie against the Texas & Pacific Railway Company. Judgment for plaintiff, and defendant appeals.

Affirmed.

Samuels, Foster, Brown & McGee, of Fort Worth, for appellant.

Claude Spratling, H. T. Cooper, and A. B. Curtis, all of Fort Worth, and R. T. Bailey, of Dallas, for appellee.

GALLAGHER, C. J.

This suit was instituted by appellee, Mrs. M. C. Wylie, against appellant, Texas & Pacific Railway Company, to recover damages for the death of her son, Robert L. Wylie, who was run over and killed by one of appellant's cars at Hodge, a shipping station on appellant's line of railway. Said station was a shipping point for the Transcontinental Oil Company. Appellant used three parallel tracks in handling its business at that point. One was the main line and the other two were switch tracks. One of these was used as a passing track, and the other was called the stock track. These tracks were situated about 10 feet apart. The passing track was west of the main line and the stock track west of the passing track. Just prior to the accident in which Wylie was killed a string of twenty-seven tank cars was standing on the stock track. The north car of this string was about 100 feet south of a road crossing. One McMullen, appellant's car inspector, was examining these cars for the purpose of ascertaining whether they were in fit condition to be put in a train and carried to their respective destinations. It was his duty to make air couplings, see that the brakes were adjusted, and make minor repairs thereon, if found necessary. He discovered that one of these tank cars which had just been loaded by the oil company and switched out from its loading rack was leaking and not in condition to be received for transportation. It is conceded that it was the duty of the oil company to stop this leak before it could demand that the car be received and transported by appellant. It was customary in such cases, and had been for several years, that when a leak was discovered, instead of switching the car back to the loading rack for repairs, the oil company should be notified by the inspector and it should send its own workmen to repair the same on appellant's track. What precautions, if any, had theretofore been employed to prevent accident to the oil company's employees while so engaged are not disclosed. Appellant's loading rack was situated east of the main line and connected therewith by a switch track. When McMullen discovered the leak he went to this loading rack, a distance of about 200 yards, and notified Connelley, foreman thereof, of such leak, and was advised by him that workmen would be sent immediately to repair the same. Connelley instructed the deceased Wylie and one Bannister, employees of the oil company, both of whom were present and heard the conversation, to go to the car and stop the leak. McMullen saw them on their way and knew their purpose. He returned to the string of cars, resumed his work thereon, and paid no further attention to Wylie and Bannister. He took no precaution whatever to protect them while they were at work on said car. He testified that he was not expecting the switch engine to enter that track nor move the cars thereon at that time, though he further testified that the switch engine had been in the yards and moving about therein for some time prior thereto. Said switch engine, at the time Connelley, in response to McMullen's request, sent the deceased and Bannister to stop the leak in the car, was standing above the crossing on the oil company's switch track. Shortly thereafter it entered the main line, passed south from the crossing to the switch or switches connecting the stock track with the main line, backed over the same to the cars on said track, and started to pull them away. When Wylie and Bannister reached the car they proceeded at once to try to stop the leak. In order to do so it was necessary that one or both of them should go on the track under the car and tighten the fitting with a wrench. They did so. Bannister came out from under the car but Wylie remained thereunder, according to Bannister's estimate, for about three minutes, watching to see whether the tightening had effectually stopped the leak. During this time the switch engine started the string of cars and Wylie was run over and killed by the car under which he was working. The testimony does not disclose that either Wylie or Bannister did anything to secure their safety while so engaged. Bannister testified, however, that when they arrived at the car, before they went under the same, he looked south to the end of the string of cars; that at that time no engine was attached thereto and none was in sight. He further testified that he did not hear the switch engine pass south on the main line; that a string of cars was situated on the passing track which obscured his vision, and that he never discovered the engine until after Wylie was killed. Appellant's rules for the government of its employees in the discharge of their duties provided that a workman engaged in repairing a car should indicate that fact by a blue flag placed on the track or on the end of the car; that the display of such flag advised employees operating engines that workmen were under or about such car or cars, and that no engine was permitted to couple onto or move such car or cars when such flag was displayed. The testimony showed that such flags were in the possession of McMullen or accessible to him; that no such flags were furnished or placed accessible to the oil company or its employees. There is no testimony that the deceased Wylie or his companion, Bannister, ever heard of such flags or their use.

The case was tried to a jury and submitted on special issues. The jury, in response thereto, found in substance: (a) That it was the duty of McMullen, appellant's car inspector, to see that blue flags were placed at the end of the string of cars under which the deceased was working at and prior to the accident; (b) that his failure to so place such flags was negligence; (c) that such negligence was the proximate cause of the death of Wylie; (d) that such death was not the proximate result of an unavoidable accident; (e) that appellee, by reason of such death, suffered financial loss in the sum of $5,000. On appellant's defense of contributory negligence the jury further found: (f) That Wylie, in placing himself under said car, did not keep a watch or lookout for movement thereof; (g) that such failure was not negligence; (h) that his remaining under the car for three or four minutes after the leak had apparently been stopped to ascertain whether it was effectually stopped was not negligence; (i) that his failure to require the placing of the blue flag as a signal that he was working under said car and his going under the same without the placing of such signal was not negligence; (j) that Bannister failed to keep a watch or lookout for the movement of the car under which Wylie was working; (k) that such failure was not negligence: (l) that the failure of Connelley to notify the operators of the switch engine that Wylie had gone to work under said car and should be protected from danger was not negligence. The court rendered judgment in favor of appellee awarding her a recovery against appellant for the sum of $5,000.00. Hence this appeal.

Opinion.

Appellant, by a group of propositions, complains of the testimony of appellee's witness Leonhart. This witness was permitted, over the objection of appellant, to testify that it was the rule and custom of the company that a blue flag should be placed at the end of a car while the same was being repaired; that it was the duty of the man working on or under the car to place such flag; that an outsider would not be permitted to place a flag on the tracks, though there was nothing in the rule book about that. Appellant having made the specific objection that the company's book of rules was the best evidence of its contents, the witness was excused from the stand, procured a copy of such book of rules, returned and read therefrom that a blue flag displayed at one or both ends of a car indicated that workmen were under or about it; that a car so protected should not be coupled to nor moved; that the flag was to be displayed by those working on the car and they alone could remove it. So far as appellant's objection that the testimony of this witness previously given was not the best evidence, any error of the court in permitting same to remain before the jury was fully cured by the fact that the written rules were actually introduced and were in substance identical with the oral testimony of the witness. Appellant had theretofore introduced oral testimony on this subject from at least three of its witnesses without producing the rule book. M., K. & T. Ry. Co. v. Johnson (Tex. Civ. App.) 193 S. W. 728, 729, par. 3. The witness was properly permitted, notwithstanding appellant's objection, to testify to the usage and customs of appellant's employees with reference to the application of the rules under consideration. Such testimony was not an invasion of the province of the jury as contended by appellant. G., H. & S. A. Ry. Co. v. Still, 45 Tex. Civ. App. 169, 100 S. W. 176, 182 (writ refused); G., H. & S. A. Ry. Co. v. Collins, 24 Tex. Civ. App. 143, 57 S. W. 884, 885 (writ refused); S. A. & A. P. Ry. Co. v. Engelhorn, 24 Tex. Civ. App. 324, 62 S. W. 561, 65 S. W. 68 (writ refused). Appellant's contention that the customs testified by such witness were inadmissible because not pleaded is without merit. Such customs were merely incidental and indicated the practical application of such rules made by appellant's employees. 17 C. J. p. 518. Of course, a different rule applies where...