Trinity & B. V. Ry. Co. v. Geary

• Decision Date: 13 June 1914
• Docket Number: (No. 344.)
• Citation: 169 S.W. 201
• Parties: TRINITY & B. V. RY. CO. v. GEARY.
• Court: Texas Court of Appeals

169 S.W. 201

TRINITY & B. V. RY. CO. v. GEARY.

(No. 344.)

Court of Civil Appeals of Texas. El Paso.

June 13, 1914.

Rehearing Denied July 2, 1914.

Appeal from District Court, Harris County; R. E. Crawford, Special Judge.

Action by Morris Geary against the Trinity & Brazos Valley Railway Company. Judgment for plaintiff, and defendant appeals. Affirmed.

See, also, 144 S. W. 1045.

N. H. Lassiter, of Ft. Worth, Andrews, Streetman, Burns & Logue, W. L. Cook, and Coke K. Burns, all of Houston, for appellant. John Lovejoy and Presley K. Ewing, both of Houston, for appellee.

HIGGINS, J.

Appellee sued for damages resulting from personal injuries sustained November 23, 1909, while in the employment of defendant as a section foreman and engaged in hauling and unloading gravel from a train on appellant's line of railroad. This is the second appeal; the former opinion appearing in 144 S. W. 1045.

The petition contains three counts, the second of which need not be noticed, as it was not submitted to the jury. The first and third counts are in precisely the same language, except as respects the allegation of negligence. In both counts it is averred that on November 23, 1909, plaintiff was in the employment of the defendant, serving it as a section foreman, and, so serving it, he was in the ordinary discharge of the duties of his service, riding on a gravel train, which was running between six and ten miles an hour, and which consisted of a long string of flat cars, just unloaded of gravel, with engine thereof facing north, but at the south end of the train, and with the caboose at the north end; that while he was so engaged in riding, standing about the center of a flat car, or, at any rate, thereon, where he had a right to be (which car was the second car from the caboose at the north end of said train), the brakes were, unexpectedly to him, suddenly applied, and the car suddenly and abruptly stopped, as would be in an instantly applied emergency, whereby he was thrown northward about 15 feet to the end of the car, and caused to fall onto and against the car and from the car to the ground, whereby he sustained injuries which were specifically alleged, together with the items of his pecuniary damage. The allegation of negligence in the first count reads:

"That one of defendant's employés engaged in operating said train, being one of the operatives thereof, in the course of his service for defendant in that behalf, and acting within the scope of his employment for it, while said train was moving as aforesaid, uncoupled cars of said train without turning the angle cocks and confining the air, whereby said cars separated and thereby burst or parted the air line or hose, by means whereof the air was suddenly applied to the brakes, and the car on which plaintiff was riding suddenly and abruptly stopped as aforesaid; which act on the part of defendant's said employé in so handling said car was negligence towards plaintiff, and a proximate cause of the injuries suffered by him as aforesaid; that the defendant sometimes claims that the sudden application of the brakes and sudden and abrupt stop of the car, as aforesaid, were solely on account of the bursting of the air hose, but, if so, such resulted from the separation of the cars, due to defendant's negligence as aforesaid, or, if not, to a defect in the hose due to defendant's negligence in failing to use ordinary care in the way of inspection to maintain the same in a reasonably safe condition."

The allegation of negligence in the third count reads:

"That aforesaid train, so causing injury to plaintiff as aforesaid, including its operation, handling, and equipment, was under the exclusive management and control of the defendant or its employés other than plaintiff, and the accident to plaintiff, so occasioned as aforesaid, was such as in the ordinary course of things does not happen if those who have the management and control use proper or ordinary care, and plaintiff's said injuries so suffered on account of said brakes being suddenly applied so as to produce said sudden and abrupt stop of the car were proximately caused by negligence of the defendant or of its agents or employés acting for it within the scope of their employment in that behalf, due to a want of ordinary care either in the operation or handling or in the equipment of said train, whereby it was, on account of negligence of the defendant or imputable to it, either improperly operated or handled defectively or insufficiently equipped, but the particular or particulars of which negligence are unknown to plaintiff, and he cannot more definitely or with greater certainty specify such; that the defendant sometimes claims that the sudden application of the brakes and sudden and abrupt stop of the car, as aforesaid, were solely on account of the bursting of the air hose, but, if so, such resulted from the separation of the cars due to defendant's negligence as aforesaid, or if not, to a defect in the hose due to defendant's negligence in failing to use ordinary care in the way of inspection to maintain the same in a reasonably safe condition."

Defendant answered by general denial and plea of assumed risk and contributory negligence.

Upon the issues raised by the pleadings, the jury was instructed:

"IV. If you believe, from the evidence, that one of defendant's employés engaged in operating the train in question uncoupled the cars of the train without turning the angle cocks and confining the air, and that thereby the cars were caused to separate and to burst or part the air hose and to apply the air to the brakes, and that the effect of this was to stop the car on which plaintiff was riding suddenly and abruptly, and that by reason thereof plaintiff was thrown and caused to fall and suffer injuries substantially in the manner alleged, and if you further believe that such operative in so doing, if he did, was acting within the course of his service and scope of his employment for the defendant, and that such act on his part, if committed, was a want of ordinary care towards plaintiff, and that such want of ordinary care, if any, was a proximate cause, as before defined, of alleged injuries to plaintiff, then find for the plaintiff under the first count of his petition, and so say by your verdict.

"V. If you do not believe, from a preponderance of the evidence, that on the occasion in question the coupling pin was pulled without the angle cocks being turned, or if you do not believe that, though same was pulled, if it was, without the angle cocks being turned, such act was negligence toward the plaintiff, or if you do not believe that such act, if done, and if same was negligence, was an act from which a person of ordinary prudence under the existing circumstances ought reasonably to have anticipated injury to a person riding upon said car in the position you may find plaintiff was at the time of the accident, then, in such event, your verdict should be for defendant as concerns the first count of plaintiff's petition.

"VI. If you do not find that an operative of the train uncoupled the cars without turning the angle cocks and confining the air, but do believe, from the evidence, that the cars separated and broke or parted the air hose, and that thereby the brakes were applied and the car on which plaintiff was riding suddenly and abruptly stopped, and that by reason thereof plaintiff was thrown and caused to fall and to suffer injuries substantially in the manner alleged, and if you further believe that such an accident does not in the ordinary course of things happen if those who have the management of the train, including its operation and equipment, use reasonable care, and if you further believe that such operation of the cars and application of the brakes and abrupt and sudden stopping of the car on which plaintiff was riding, if such happened, resulted in some manner either from improper operation or defective equipment of the train, and that such was due to a want of ordinary care on the part of the defendant or of any of its agents or employés acting for it within the scope of their employment, and that such want of ordinary care, if any, was a proximate cause, as before defined, of alleged injuries to plaintiff, if sustained, then find for plaintiff under the third count of his petition, and so say by your verdict.

"You will not separately consider the second count of the petition, since, so far as sustained by the court, it is the same as the third.

"VII. If you do not believe from a preponderance of the evidence that the cars separated and that the air hose was thereby bursted or parted, and that by such means the brakes were applied and the car on which plaintiff was riding suddenly and abruptly stopped, or if you do not believe that by reason thereof plaintiff was thrown and caused to fall and to suffer injuries substantially as alleged, or if you do not believe that such sudden and abrupt stop of the car, if any, was due to a want of ordinary care on the part of the defendant or of any of its agents or employés acting within the scope of their employment, or if you do not believe that injury to plaintiff, or any like injury, could, in the exercise of ordinary care, reasonably have been anticipated as a natural and probable consequence of such sudden and abrupt stop, if any, then find for the defendant, and so say by your verdict.

"VIII. If you find plaintiff entitled to recover under the first count, you need not consider his right to recover or not under the third count.

"If you do not find plaintiff entitled to recover under the first count, then, unless you believe, from a preponderance of the evidence, that some defect in the train existed, and that defendant or its agents or employés knew thereof, or, in the exercise of ordinary care, should have known thereof, within a reasonable time to have remedied it, and that such defect, if existing with the knowledge, or negligent...