Wichita Falls & S. R. Co. v. Holbrook, 12640.

• Decision Date: 05 March 1932
• Docket Number: No. 12640.,12640.
• Citation: 50 S.W.2d 428
• Parties: WICHITA FALLS & S. R. CO. v. HOLBROOK.<SMALL><SUP>*</SUP></SMALL>
• Court: Texas Court of Appeals

50 S.W.2d 428

WICHITA FALLS & S. R. CO. v. HOLBROOK.^*

No. 12640.

Court of Civil Appeals of Texas. Fort Worth.

March 5, 1932.

Rehearing Denied April 30, 1932.

Appeal from District Court, Young County; Allan D. Montgomery, Judge.

Action by Henry M. Holbrook against the Wichita Falls & Southern Railroad Company. Judgment for plaintiff, and defendant appeals.

Affirmed.

Bullington, Humphrey & King, of Wichita Falls, and Fred T. Arnold, of Graham, for appellant.

Raymond E. Buck, of Fort Worth, for appellee.

CONNER, C. J.

This appeal is from a judgment in favor of Henry M. Holbrook, appellee, against the appellant Wichita Falls & Southern Railroad Company for the sum of $18,000 damages for personal injuries received by him on or about November 20, 1929.

The evidence shows that the appellant company operates a line of railway from Wichita Falls in a southerly direction through Olney, Young county, and on to Breckenridge, and thence to Dublin, Tex., where it connects with the Missouri, Kansas & Texas Railway Company. Appellee at the time of the accident was engaged in his work as a brakeman. He was 48 years of age and had been engaged in railroading for about 23 years, about 8 years of which time prior to the accident he had been in the employment of the appellant company. He was familiar with the right of way and all the switches along the line of appellant company, and familiar with the custom and practice employed by appellant company in switching its cars at various points and stations along the line of railroad. At the time of the accident appellee was a brakeman on a local freight running between Wichita Falls and Breckenridge, and on the morning of the accident he left Wichita Falls on his regular run to Breckenridge. This local freight did switching at intermediate points along the line, and it was the duty of appellee, as brakeman, to uncouple cars, manipulate the brakes, throw switches, and do switching service generally at such intermediate points as was required. On the day in question appellee was serving as head brakeman on the train which reached Olney about noon. When the train arrived at Olney it stopped and appellee, with the other members of the crew, went to dinner. After eating dinner, a Mr. Cooper, the rear brakeman, and the conductor went into the depot and received a list of work to be done by the crew at Olney, which list the conductor gave to the rear brakeman. The conductor then returned to the station and the remainder of the crew, under the direction of the rear brakeman, went down to the "wye" to pick up three cars, one or more of which were to be incorporated in the further progress of the train. The wye was located on the east side of the main line, the engine fronted in on the wye and attached thereto three cars and started back on the main line with a view of shifting the three cars on what was termed a passing track. The passing track was also situated on the east side of the main line. The switch points leading from the wye to the main track were some 6, 7, or 8 feet perhaps south of the switch points leading from the main track out upon the passing track. The movement indicated is designated as a "drop of three cars," or "flying switch." The purpose of the movement was to reverse the relative position of the engine and the cars which were dropped on the passing track. There was a switch stand some 5 feet east of the east line of the main track. The switch points were some 15 feet long, the sharp ends of which were attached to a rod leading to the switch stand, this rod was attached to a projecting knuckle on the bottom of a revolving rod extending up through the switch stand some 5 feet where it was surmounted by a round disc into the edges of which were three notches. These notches were used for the reception of a handle which, when at rest, extended downward. When the switch points were moved so as to permit the passage of trains on the main line, the handle was in the notch immediately opposite and east of the switch points and the main track. The one to the right was located in the southwest part of the disc and the one to the left in a northeasterly direction from the disc. At the time in question, after having attached the engine to the three cars on the wye, both brakemen and the engineer and fireman proceeded on the engine until near the switch for the passing track, where appellee, upon the direction of the rear brakeman and in the performance of his duty, dropped off at the switch stand. The engine was then unconnected from the three cars and proceeded along the main line north rapidly, and, after it had passed the switch points to the passing track, appellee turned the switch so as to throw the cars onto the passing track. The momentum of the three cars, however, was not such as to clear them from the main track, the forward of the three entering upon the passing track switch points, but stopped before it cleared the main track, about one-half of the car being on the side track and about one-half on the main track. At this point the rear brakeman directed appellee to see if any one or more of the three cars had brakes on. The brakes were found to be on one car which was loosened and appellee returned to the switch stand. The engineer then, by the direction of the rear brakeman, who was the foreman in the direction of the operation, moved forward against the front car in an effort to push the three cars onto the main track, but by reason of the position of the car this failed, and the rear brakeman went to the north side of the right of way and picked up a piece of timber about 4×4" and 7 feet long; this was placed against the pilot beam of the engine and against the car, and the engineer was directed to move forward; he did so, but with a force to break the pole. Appellee's evidence, however, authorizes the conclusion that the force then applied moved the three cars back onto the main line and the engine proceeded forward until the front trucks came upon the switch points and continued to so proceed until the switch point resting on the inside of the western line of the main track was suddenly and violently pressed away, thus communicating a lateral force along the switch rod leading to the stand. At the time of the effort to move the cars by the pole, Cooper, the rear brakeman, was on the opposite side of the track, as was also the engineer, the fireman being on the east side. Appellee, with the purpose of throwing the switch as soon as the three cars ran off onto the main track, took hold of the handlebar that turns the disc and had pulled it about halfway out of the slot in the disc when the lateral pressure of the engine on the tips of the switch point caused the handle to fly out and around against appellee's lower bowels and inflict the injuries on account of which he sued.

Appellee knew that the poling movement was to be made; he knew the relative position of the wheels of the front truck of the front car and the wheels of the pony truck of the engine. He testified that the switch points were about 15 feet long. He knew what would happen if the wheels of the engine rolled upon these points with the switch thrown against it. He knew that this would put a pressure on the points, and that, if the switch lever was out, it would be thrown violently around.

After defining the terms "negligence,' "proximate cause," "new and independent cause," "ordinary care," and "contributory negligence," the court submitted the case to the jury on special issues, in answer to which the jury found that the engineer was guilty of negligence "in the manner and way he moved such engine along the switch points at the time and place in question." And that "such negligence was a proximate cause of the injury to the plaintiff." That the pole used in the switching operations "was insufficient in size and material for the use it was being put to," and that the use of such pole by defendant's crew constituted negligence which was a "proximate cause of plaintiff's injury." The jury also found that the crew operating the train was guilty of negligence "in the manner in which the pole was placed between the engine and box car," and that such negligence was a "proximate cause of plaintiff's injury." Also that the rear brakeman (Ditto) was guilty of negligence that proximately contributed to plaintiff's injury in signaling the engineer "to move the engine forward" at the time and place in question.

No one of appellant's propositions of error is based upon the contention that the foregoing findings of the jury are unsupported by the evidence. We need not, therefore, relate the circumstances which sufficiently support those findings. The vital questions presented are: Did appellee assume the risk of the danger and injuries incident to the work at which he was engaged at the time? If not, was he guilty of negligence in any degree which proximately contributed to his injuries?

Article 6432, Rev. Civ. Statutes, chapter 10, title 112, relating to railroads, reads as follows: "Every person, receiver, or corporation operating a railroad or street railway, the line of which shall be situated in whole or in part in this State, shall be liable for all damages sustained by any servant or employee thereof while engaged in the work of operating the cars, locomotives or trains of such person, receiver, or corporation, by reason of the negligence of any other servant or employee of such person, receiver or corporation, and the fact that such servants or employees were fellow-servants with each other shall not impair or destroy such liability." See, also, article 6439, of the same chapter.

Article 6433, among other things, provides, in substance, so far as necessary to note, that employees who are intrusted with the authority of superintendence, control, or command of the other servants or employees of a railroad corporation, with the authority to direct any other employee in the performance of...