Wichita Falls, R. & Ft. W. R. Co. v. Combs

• Decision Date: 05 April 1923
• Docket Number: (No. 1453.)
• Parties: WICHITA FALLS, R. & FT. W. R. CO. v. COMBS.
• Court: Texas Court of Appeals

Page 714

250 S.W. 714

WICHITA FALLS, R. & FT. W. R. CO. v. COMBS.

(No. 1453.)

Court of Civil Appeals of Texas. El Paso.

April 5, 1923.

Rehearing Denied May 3, 1923.

Appeal from District Court, Eastland County; E. A. Hill, Judge.

Action by Leslie Combs against the Wichita Falls, Ranger & Ft. Worth Railroad Company. Judgment for plaintiff, and defendant appeals. Affirmed on condition of remittitur.

John B. Howard, of Pecos, Conner & McRae, of Eastland, Levy & Evans, of Fort Worth, and R. E. Taylor, of Wichita Falls, and Thompson, Barwise, Wharton & Hiner, of Fort Worth, for appellant.

Randell & Randell, of Sherman, and Ocie Speer, of Fort Worth, for appellee.

HARPER, C. J.

Appellee brought this suit against the appellant for damages arising from personal injuries inflicted upon him by reason of a defective automatic coupler, alleged to have occurred in the following manner, to wit: That appellant was engaged in operating a line of railway as a common carrier; that appellee was employed as a conductor, with the duty of assisting in switching and coupling cars; that while so engaged at the time and place of the injury the track was rough and uneven. The drawheads of the coupler were old, worn, defective, out of place, etc., and it became necessary for him to use his left foot in between the cars and against the drawhead of said coupler in order to make the coupling; and that in so doing his foot was caught between the drawheads and crushed.

Appellant answered by general denial, and specially pleaded that the coupler and drawheads were in the condition required by the federal statute.

The cause was submitted upon general charge and verdict and judgment for $40,000, from which an appeal is perfected.

Propositions 1 to 5, inclusive, complain of the refusal of special requested instructions. The instructions were not signed by appellant or its counsel; for that reason the court did not err in refusing same. First National Bank of Snyder v. Patterson (Tex. Civ. App.) 185 S. W. 1018.

The sixth complains of the refusal to submit the following special instruction:

"Gentlemen of the jury, in this case you are instructed that if you find and believe from the testimony introduced before you that the plaintiff is suffering from a tubercular condition, or from any other health condition not caused by the injury of the plaintiff as alleged, then you are instructed not to take into consideration such condition in arriving at your verdict. In this connection you are further instructed that if you find and believe from the evidence that the loss of strength, if any, by the plaintiff, or the loss of weight, if any, or the loss of appetite, or the proper lack of digestion, was not due to directly or caused by the injury of the plaintiff, as alleged in his petition, then you are instructed that you will not consider such conditions and such ailments in arriving at your verdict."

And the seventh proposition is to the same effect.

These propositions were sufficiently covered by the main charge, which contains the following:

"But you will not consider any physical pain, lessened capacity, condition or result whatever that did not proximately and naturally result from plaintiff's said injuries."

The eighth complains of the refusal of a special charge to the effect that the burden of proof was upon the plaintiff to prove by a preponderance of the evidence that the car or cars were not equipped with a coupler that will couple automatically by impact, as required by the Federal Safety Appliance Act (U. S. Comp. St. § 8606), and that such failure, if any, was the proximate cause of the injury complained of. The main charge correctly submitted this issue.

It is next contended that the verdict of the jury and the judgment of the court should have been set aside because against the great weight and preponderance of the evidence.

The fact of an accident carries with it no presumption of negligence on the part of the employer, and it is an affirmative fact for the injured employee to establish that the employer has been guilty of negligence. Texas & Pacific Ry. Co. v. Barrett, 166 U. S. 617, 17 Sup. Ct. 707, 41 L. Ed. 1136.

The appellee testified, who qualified as an expert:

"I met with an accident while I was engaged in that work. * * * To explain to the jury so they will understand what I was doing there, I was switching out material, and this pipe to be carried from Frankell to Breckwalker, and this pipe could be moved over on the tracks so I could get room — the cars had to be moved to move the pipe, * * * and I had to leave Ranger at 5 o'clock in the morning to get to Frankell to switch out this material and get to Breckwalker to get my construction crew and construction force to work by 7 o'clock, which would require us to get to Breckwalker with this material and get my men and bring them back a couple of miles or three, this side of Breckwalker, to tie up the track. Some of the material at Breckwalker — in coupling into these cars there was one cut of cars six or eight, in one cut, and down probably 100 yards was another cut of cars, and down to the lower end of this long track was the third cut of cars. The Frankell yard is about 1 per cent. grade, and for about three miles...