Thompson v. Brown, 2856.

• Decision Date: 07 July 1949
• Docket Number: No. 2856.,2856.
• Citation: Thompson v. Brown, 222 S.W.2d 442 (Tex. App. 1949)
• Parties: THOMPSON v. BROWN.
• Court: Texas Court of Appeals

222 S.W.2d 442

THOMPSON v. BROWN.

No. 2856.

Court of Civil Appeals of Texas. Waco.

July 7, 1949.

Rehearing Denied August 8, 1949.

COPYRIGHT MATERIAL OMITTED

Appeal from District Court, McLennan County; W. M. Harman, Judge.

Action by Herman E. Brown against Guy A. Thompson, trustee for International-Great Northern Railroad Company, for personal injuries sustained when a train was derailed. From the judgment, defendant appeals.

Judgment affirmed.

Taylor & Dickens, Marlin, Kelley, Mosheim & Ryan, Houston, for appellant.

Jones, Jones & Brian, Marshall, Woodie M. Zachry, Waco, for appellee.

TIREY, Justice.

Herman E. Brown, a brakeman, brought this suit for damages as a result of personal injuries sustained by him by reason of a derailment of the freight train on which he was riding while engaged as head brakeman. The jury's verdict was favorable to plaintiff and awarded him $25,000.00 damages. The judgment followed the verdict and defendant has perfected its appeal.

The cause of action is grounded on three counts: (1) a plea of res ipsa loquitur; (2) a violation of the Federal Safety Appliance Act, or Boiler Inspection Law, 45 U.S.C.A. § 23; and (3) negligence on the defendant in its failure (a) to keep the roadbed in repair; (b) that the locomotive was operated at a high and excessive rate of speed, and (c) at a speed in excess of that fixed by the applicable operating rules of defendant. Each of these counts was denied by appropriate pleading and defendant specially pleaded that the derailment was the result of an unavoidable accident and, in the alternative, specially pleaded contributory negligence on the part of plaintiff (a) in failing to call the attention of the conductor to the fact that the train was being operated in excess of forty-five miles per hour, and (b) in failing to take immediate action to get the train under safe control.

Evidence was tendered to the effect: That appellee's crew took over the operation of the train at Mart, Texas, at 2:20 P. M. on December 8, 1947; on leaving Waco it was comprised of two cars containing cement and one water car and caboose; six miles north of Waco it was derailed at 5:10 P. M. of the same day; the engine and tender left the tracks but did not turn over; two cement cars and the caboose left the track and fell on their sides; the track was torn up for about 670 feet; the inspection report (engineer Russell) of November 26, 1947 stated that the engine involved was "riding very rough, take up slack between the engine and tank"; on December 7, 1947 engineer Russell reported at Houston the same engine was "riding very rough, take out slack between the engine and tank"; on December 8th, approximately three hours before the derailment, engineer Carter reported at Mart "slack bad between engine and tank" and engine foreman Humbert noted on the report "eng (engine) through service no repairs made"; that the slack between the tender and the engine and the rough riding would not interfere with the safety of the locomotive and that there was nothing wrong with the engine and that some locomotives rode rougher than others; a farmer (while at work), whose land was adjacent to the track near the point of the accident, had been observing the trains as they came along for about two weeks before the wreck, and he said: "They looked like they rocked, the train rocked."; his son went to the scene of the wreck immediately after it happened; he saw some broken rails, the torn-up track and some decayed ties; that the gauge of the road was correct; that the roadmaster had inspected this particular track the day before and that it was in good condition; that the rails were 90 pound rails and that the ballasting was in good repair; that the track at the point of the derailment had been ballasted and built up since the derailment and that the level of the track had been raised about 2½ inches and that some of the ties were changed in the course of that operation.

Appellee said that just out of Mart he was riding on the deck of the engine and the engine was swaying from side to side and he said to the engineer and fireman, "What's the matter with this thing? * * * After it throwed me down twice I told the fireman there was something wrong with this engine. I couldn't get what he said, but he laughed, and I told him `I am going to get back here and ride on the sand box.'" After that he rode on the sand box until they stopped and set out some cars at the gravel pit before reaching Waco. Both the fireman and engineer said that no such conversation took place; that the engine was not swaying and that Brown was not thrown down. Appellee said that after setting out some cars in Waco and taking on two cement cars from the Cotton Belt Railroad he rode in the cupola of the caboose on the right side, with his back against the window frame, and that the conductor and rear brakeman were with him. With reference to the speed of the train before the accident appellee said: "* * * the further he went the faster he got, and the caboose began to weave back and forth. * * * We had been talking about getting to Fort Worth. There was a passenger train due out of there at 7:20. * * * Mr. Sadler made a remark, I remember he said — he looked at Dummy (the conductor), he said, `Dummy, how would you like to hit the ground about now?' and the conductor told him to shut up, `I don't want to be getting one of these sacks of cement in my lap.'" That when this conversation took place the train was traveling at between 55 and 60 miles per hour and that the wreck occurred about one minute after the conversation. Both the conductor and brakeman said there was no such conversation, that the caboose was not swaying and that the train was not running in excess of 45 miles per hour. The engineer said that he was not running in excess of 45 miles per hour and that he had no thought of speeding up his train so as to try to get to Ray Yards at Fort Worth before the passenger train left at 7:20 in order to make an hour or two of extra time. Appellee said: "The caboose started jumping up and down and I looked out and there was fog and dust, and the cars were jumping up, and the conductor yelled something, I think he yelled, grab something, but I couldn't find anything to grab, and the last thing I remember I was getting up like this * * *. Before the caboose turned over the cars were jumping up and down and I looked up ahead, it all happened in a fraction of a second, and these cars in front of us were turning, and that was when I was hunting for something to grab hold of. The next thing I remember the caboose reared up and fell over and when that dust cleared up I was in the cupola with my back against the top of the caboose, in kind of a sitting position. * * * I was sitting in that position with my back against the top. * * * The best I remember it kind of whirled us over, it was kind of a black-out. * * * My back was against this grab iron at the top of the cupola"; that the grab iron was situated at the top and side of the cupola; that after the caboose stopped its movement "the conductor crawled out and he says, `Let's get out of here' and when I tried to move I couldn't move. * * * Frank Sadler and I believe the fireman got back in there and helped me out. * * * I held on to this cat walk on top of the caboose, I had to bring one of my legs up and ease on around, and I held on to the caboose." This testimony was denied by both the conductor and the other brakeman in the cupola at the time. It was without dispute that there was an air valve in the cupola of the caboose which would enable the conductor, or any employee in charge of the train, to put on the air in an emergency, that the conductor could signal the engineer that the train was running too fast, and if he thought it was, in such cases it was his duty to do so. It was not contended that the conductor gave any such signal to the engineer, nor that appellee asked him to do so. All of the members of the train crew except appellee said that the train was not running in excess of forty-five miles per hour, and that they did not know what caused the derailment of the train. Conductor Thompson testified in part as follows:

"Q. You have been asked whether you know what caused the derailment. Trains are not in the habit of getting off the track? A. No, sir, I don't think so. * * *

"Q. You know something has to go wrong with the engine for the engine to leave the rail unless there is some cattle on the track or a head-on collision? A. Yes, sir.

"Q. Some defect? A. Yes, sir."

The brakeman on duty is subordinate to the conductor; the general direction and the governing of the train is vested in the conductor and all persons employed on the train must obey his instructions; that under instructions of the railroad company the train in question was not to be operated at a rate of speed in excess of 45 miles per hour; that under the rules of the railroad company in force at the time, if the brakeman observed that the train was being operated at a rate of speed in excess of 45 miles per hour, it was the duty of the brakeman to call it to the attention of the conductor.

The trainmaster was at Mart at the time the accident happened and he went immediately to the scene and made some observations and a memorandum of what he saw.

"Q. As you went up the track and got to where there was some evidence of where the wreck started on the track what did you see there with reference to the rails and ties and track? A. Where the derailment first occurred the left or west rail was turned over and there was a mark down the web of the rail indicating something had passed over it and I presumed it to be the flange of the engine. There was a mark on the right rail that would indicate a heavy large object had struck the rail and bent it and kinked it, I presumed this to be the counter-balance of the main driver on the right side. For two rail lengths on the west side there...