Thompson v. Robbins

• Decision Date: 26 June 1957
• Docket Number: No. A-6201,A-6201
• Citation: 304 S.W.2d 111,157 Tex. 463
• Parties: Guy A. THOMPSON, Trustee for International Great Northern Railroad Company, v. Walter ROBBINS, Respondent.
• Court: Texas Supreme Court

Page 111

304 S.W.2d 111

157 Tex. 463

Guy A. THOMPSON, Trustee for International Great Northern Railroad Company, v. Walter ROBBINS, Respondent.

No. A-6201.

Supreme Court of Texas.

June 26, 1957.

Rehearing Denied July 24, 1957.

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

Luther C. Johnston, Palestine, Helm, Jones, McDerott & Pletcher, Albert P. Jones, Houston, for respondent.

SMITH, Justice.

This is an action to recover damages brought under the Federal Employers' Liability Act, 45 U.S.C.A. § 51 et seq. The particular section of the Act with which we are principally concerned is Section 53. ¹ Judgment in favor of plaintiff, based primarily on a jury verdict entered by the trial court, was affirmed by the Court of Civil Appeals. 297 S.W.2d 247. This court granted a writ of error on a petition which asserted four points of error. This court was of the tentative view that the matters presented in Point 2 ² were erroneously decided by the Court of Civil Appeals. The remaining points present the contention that: (1) the evidence showed as a matter of law that there was no breach of any duty owed to respondent by petitioner, and, as a matter of law, there was no evidence of actionable negligence; (2) that the trial court erroneously defined the term 'sole proximate cause'; and (3) that the trial court erred in failing to submit petitioner's requested Issue No. A inquiring as to whether the various acts and omissions of the plaintiff, in combination, as inquired about separately in other issues, was not the sole proximate cause of his injuries, if any. We have concluded that the points fail to pesent reversible error. It follows that the judgments of the trial court and the Court of Civil Appeals must be affirmed.

The evidence most favorable to the verdict supports the findings that the plaintiff's injuries were proximately caused by the primary negligence of petitioner. The jury exonerated respondent, Robbins, from contributory negligence.

The parties will hereafter be referred to and designated as in the trial court.

Plaintiff worked for the defendant as a brakemen. At the time of the accident in question plaintiff was 56 years of age and had been railroading since 1917. Plaintiff was notified about an hour and a half in advance that he was to be a member of a crew on an extra west freight train on May 23, 1954, the date of the accident. The train was 'called' for 1:30 p. m. Plaintiff's pay started at 1:15 p. m. Plaintiff went in advance of that hour to the depot and signed the Federal Rest Sheet which indicated the length of time that he had been off duty; the evidence shows that it had long been the custom, in the Palestine yards of defendant where this accident occurred, for members of the crew, and particularly the conductor and the trainmen, including the brakemen, to go to the caboose of the train for which they had been called to duty for road service, while the train was being made up, and that the defendant, its agents and servants, including the switching crew or crews working in the yards and making up the trains, knew of such long-standing custom; that on the day in question, plaintiff, after signing the rest sheet, went out into the yards and located his caboose, which was situated on South 3 track; and he immediately entered the caboose. Some cars were attached to the caboose, but he did not know whether the train was completely made up, and he knew that the caboose might be moved.

It is in evidence that it was good railroading to arrive at the caboose at the time he did; that plaintiff was assigned the job of Flagman, and that as such Flagman, plaintiff began prompt performance of his duties which consisted chiefly in getting out markers to indicate the rear of the train and to check the supplies to see that he had flagging equipment and the proper material to work with; that while he was in the act of picking up two markers off the floor, the caboose and care ahead were struck with a great deal of force by a moving 'cut of cars' being switched by the defendant's switching crew; that the blow caused plaintiff to be thrown or knocked a distance of some 20 feet; that the 'cut of cars' struck the caboose, and, although it was customary for the switchmen to give warning of coupling movements, the switching crew failed to give such warning; the testimony shows that plaintiff was standing with his legs wide apart, and that he would not have been knocked down if the coupling was made at no greater speed than four miles per hour; that the Railroad Rules provided that couplings should not be made at a speed of more than four miles an hour, and that the 'cut of cars' would have had to be going at least ten miles an hour to knock a man 20 feet. Other evidence shows that there was no rule requiring trainmen to sign in at any specific time before the scheduled departure of the train. Sometimes plaintiff would sign in more than forty-five minutes before, and sometimes just at the start of the period of preparatory time before departure; plaintiff had never been told by anyone to wait until the train was ready to go before entering the caboose and beginning his preparatory work; that it had never been customary to find out whether the train had been completely made up before entering the coboose because the employees were protected by Rule 103A2, which provides 'When coupling or shoving cars, take proper precaution to prevent damage of fouling of other tracks by stretching, coupling and setting sufficient hand brakes, make coupling at a speed of not more than four miles per hour.' Plaintiff was under no duty to look out windows or get on top of the caboose to ascertain whether a switching movement was being made; he was standing with a stance that would protect him against a four-mile per hour blow. He was braced at the time of the blow.

In response to special issues the jury found that plaintiff's injuries were proximately caused by the primary negligence of defendant and that the plaintiff was performing duties in the course of his employment at the time he sustained his injuries. The jury further found: (1) that the defendant knew of the custom of trainmen, including brakemen, entering the caboose before the train was made up, and that the switching crew handling the 'cut of cars' should have reasonably anticipated that a member of the train crew might be in the caboose at the time and on the occasion in question; (2) that the standing cars to which the caboose was attached was struck with unusual force and violence by the moving cut of cars; (3) that the 'cut of cars' was permitted to strike the cars to which the caboose was attached 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; (4) that the lead car of the rolling 'cut of cars' was equipped with a hand brake adequate to control the speed of such cut of cars; (5) that the failure to place a switchman on the lead car of the rolling cut of cars was negligence and a proximate cause of the accident and subsequent injuries, and (6) that the 'cut of cars' which were being moved was kicked by the locomotive, and that this act as well as all the others above enumerated constituted negligence on the part of the defendant, and that each act of negligence was a proximate cause of the occurrence in question.

The jury in answering special issues Nos. 17 to 36, inclusive, exonerated plaintiff of all acts of contributory negligence charged against plaintiff. The jury found (1) that plaintiff was not negligent in failing to give notice to any member of the switching crew of his intentions to enter the caboose when he did or at any time before his injury; (2) that he was not negligent in assuming that the train had been made up and that switching operations had been completed before he entered the caboose; (3) that he was not negligent in failing to make any inquiry or investigation to find out if the train had been made up and switching operations completed before entering the caboose; (4) and that (3) above was not the sole proximate cause; (5) that Robbins did not fail to keep such a lookout for cars being switched in making up the train in question as would have been kept by a person of ordinary prudence in the exercise of ordinary care under the same or similar circumstances; (6) that plaintiff did not fail to properly brace himself in the caboose; (7) although the jury found that plaintiff did not fail to brace himself properly, it found in answer to Special Issue No. 27A that failure to properly brace himself was not the sole proximate cause of the occurrence; (8) that plaintiff did not fail to exercise ordinary care for his own safety; (9) that he did not violate defendant's Rule which reads:

"Constant presence of mind 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."

(10) that entering the caboose at the time he did without giving notice was not negligence; (11) that entry without notice was not the sole proximate cause of the occurrence; (12) that the act of plaintiff in entering the caboose when he did without first making some inquiry or investigation to find out if switching operations had been completed did not constitute negligence, and (13) that such act was not the sole proximate cause of the occurrence.

Defendant contends that in the absence of knowledge that an employee in a railroad switch yard is in a position of danger and is oblivious to such danger, a switch crew at work in the yard is under no duty to warn him of the impending switching operations or to...