Thompson v. Robbins

• Decision Date: 06 December 1956
• Docket Number: No. 6915,6915
• Citation: 297 S.W.2d 247
• Parties: Guy A. THOMPSON, Trustee for International-Great Northern Railroad Company, Appellant, v. Walter ROBBINS, Appellee.
• Court: Texas Court of Appeals

Page 247

297 S.W.2d 247

Guy A. THOMPSON, Trustee for International-Great Northern Railroad Company, Appellant, v. Walter ROBBINS, Appellee.

No. 6915.

Court of Civil Appeals of Texas, Texarkana.

Dec. 6, 1956.

Rehearing Denied Dec. 27, 1956.

R. B. Reeves, Joe N. Davis, Palestine, Hutcheson, Taliaferro & Hutcheson, McGregor & Sewell, Ben G. Sewell, Houston, for appellant.

Luther C. Johnston, Palestine, Helm, Jones, McDermott & Pletcher, George P. Pletcher, Shirley M. Helm, Albert P. Jones, Houston, for appellee.

DAVIS, Justice.

This is a suit by plaintiff-appellee, an employee, against defendant-appellant, a railroad corporation, under the Federal Employers' Liability Act for damages allegedly received by said employee while in the course of his employment for said railroad corporation. Appellee alleged: His regular employment for appellant was that of a freight conductor but that he was serving at the time and on the occasion in question as a brakeman on a freight train. That he received a call to duty from appellant on May 23, 1954, to report for duty at 1:15 p. m., where a freight train was being made up in Palestine, Texas (this being the home of appellee and the place of the alleged injuries), to make a run to Taylor, Texas. That he reported to the yard about 12:30 p. m. for the purpose of doing all incidental chores preparatory to making the trip, which was an established custom among the employees of appellant at the yards in Palestine, which preparatory work was incidental and necessary to good railroading and the furtherance of appellant's business. That going to work ahead of time was a custom known to appellant. Appellee found the caboose of the train and entered the same shortly before 12:55 p. m. on said date for the purpose above stated. That shortly after he entered the caboose a cut of cars was kicked or shoved into the cars to which the caboose was attached with unusual force and violence and knocking plaintiff a distance of some 20 feet, causing severe and permanent injuries, especially to his back. That he was carried to a hospital in Palestine by ambulance in an unconscious or semi-conscious state, and that afternoon he vomited large quantities of blood on three different occasions. He was kept in the hospital, flat on his back on a hard mattress for six weeks, and was then permitted to sit up on the side of his bed and begin to try to walk about. He was discharged from the hospital on October 6, 1954. He was a man 56 years of age at the time of the accident, had been employed by appellant for approximately 25 years, was earning and capable of earning $6,000 per year. As a result of said injuries he was totally and permanently disabled to work, and that he had a life expectancy of 17.10 years.

Appellee alleged that appellant was guilty of negligence in one or more of the following particulars:

'1. In permitting the cars which were being switched to strike the string of cars to which the caboose was attached with unusual force and violence.

'2. In permitting the cut of cars which were being switched to strike the cars to which the caboose was attached at a rate of speed which was excessive under the circumstances.

'3. In permitting the cut of cars which were being switched to roll down Track 3 at a rate of speed in excess of that at which a person of ordinary prudence in the exercise of ordinary care would have permitted them to move under the same or similar circumstances.

'4. In permitting the cut of cars to roll down grade without having a switchman thereon to control the speed thereof.

'5. In permitting the cut of cars to roll free on a down grade.

'6. In permitting the cut of cars to roll free of the locomotive.

'7. In failing to have the cut of cars which were being switched attached to a locomotive in order that the speed of such cut of cars might be controlled.

'8. In failing to give proper warning to your plaintiff.

'9. In failing to maintain a proper lookout for your plaintiff.

'Each and all of the above and foregoing were acts, both of omission and commission, were negligent and constituted negligence, and were each and all a proximate cause of the occurrence out of which this suit arises and of the injuries and damages suffered by your plaintiff.'

Appellant answered by general denial and that appellee was negligent in one or more of the following respects:

'1. In failing to give notice to the switching crew of his intention to enter the caboose when he did or of his presence in the caboose.

'2. In assuming before entering the caboose that the train had been made up and that switching operations had been completed.

'3. In failing to make any inquiry or investigation to find out if the train had been made up and switching operations completed.

'4. In failing to keep a proper lookout for cars being switched in making up the train in question.

'5. In failing to keep a proper lookout for his own safety.

'6. In failing to exercise ordinary care for his own safety.

'7. In failing to properly brace himself in the caboose.

'8. In ignoring and violating a rule of his employment, with which he was familiar, to the effect that:

"Constant presence of mind to insure safety to themselves and others is the primary duty of all employees and they must exercise care to avoid injury to themselves or others * * * when employees are on or near tracks, they must expect the movement of trains, engines, or cars at any time, on any track, in either direction.'

'9. In entering the caboose at the time he did without first making some inquiry or investigation to find out if switching operations had been completed.

'The foregoing acts and omissions constituted negligence. Each such act and omission was a proximate cause of the plaintiff's injuries, and alternatively one or more of such acts and omissions, separately or in combination or in concurrence with one or more of such acts and omissions, constituted the sole proximate cause of the plaintiff's injuries.'

Trial was to a jury which found that:

1. Appellee was performing his duties in the course of his employment for appellant at the time of his injuries;

2. Appellee sustained bodily injuries as a direct, proximate result of the occurrences in question;

3. There was a custom on the part of conductor and trainmen of the road crew to enter the caboose in the Palestine yards of appellant before the train of which the caboose would be a part was completely made up;

4. Appellant knew of such custom;

5. The switching crew should have reasonably anticipated that a member of the train crew would be in the caboose at the time and on the occasion in question;

6. The standing cars attached to the caboose were struck with unusual force and violence by a moving cut of cars;

6a. Such act was negligence;

7. Such act was a proximate cause of the occurrence in question 8. On the occasion in question the cut of cars that was being switched was permitted to strike the cars attached to the caboose at a rate of speed in excess of that at which a person of ordinary prudence in the exercise of ordinary care would have permitted them to strike under the same or similar circumstances;

9. Such act was a proximate cause of the occurrence in question;

10. The lead car on the rolling cut of cars was equipped with a hand brake adequate to control the speed of such cut of cars;

11. The failure of appellant to place a switchman on the lead car of the rolling cut of cars was negligence;

12. Such negligence was the proximate cause of the occurrence in question;

13. The cut of cars which were being moved was kicked by the locomotive;

14. Such act was negligence;

15. Such negligence was a proximate cause of the occurrence in question;

16. The occurrence in question was not the result of an unavoidable accident;

17. The failure of appellee to give notice to any member of the switching crew of his intention to enter the caboose was not negligence;

19. Appellee was not negligent in assuming before entering the caboose that the train had been made up and switching operations had been completed;

21. The failure of appellee to make inquiry or investigation to find out if the train had been made up and switching operations completed before entering the caboose was not negligence;

23. Appellee did not fail to keep a proper look for cars being switched in making up the train;

25. Appellee did not fail to properly brace himself in the caboose;

28. Appellee did not fail to exercise ordinary care for his own safety;

30. Appellee did not violate defendant's rule reading: 'Constant presence of mind to insure safety to themselves and others * * *'

33. Appellee's entering the caboose without first giving notice to the switching crew was not negligence;

35. The act of appellee in entering the caboose without first making inquiry or investigation to find out if switching operations had been completed was not negligence;

37. Damages were assessed at $75,000.

Special Issue No. 38 which inquired as to the amount, if any, should be deducted from appellee's damages because of his negligence was unanswered. In view of the fact that the jury had exonerated appellee from each and every alleged act of negligence, an answer was unnecessary.

Appellant filed motions for instructed verdict and for judgment non obstante veredicto. These were overruled and judgment was entered in behalf of the appellee for $75,000. Appellant's motion for new trial was overruled, and it has perfected this appeal. It brings forward 13 points of error.

By Point 1, appellant complains of the action of the trial court in entering judgment for appellee and contends that the undisputed evidence shows that there was no breach of duty owed to appellee by appellant, and as a matter of law, no evidence of actionable negligence. We find the evidence to be very much disputed, and the overwhelming preponderance of such to the contrary. Appellant had a fixed set of rules to govern the...