Wight v. Callicut

• Decision Date: 27 November 1920
• Docket Number: (No. 2323.)<SMALL><SUP>*</SUP></SMALL&gt
• Parties: WIGHT et al. v. CALLICUT.
• Court: Texas Court of Appeals

225 S.W. 389

WIGHT et al. v. CALLICUT.

(No. 2323.)^*

Court of Civil Appeals of Texas. Texarkana.

November 27, 1920.

Rehearing Denied December 2, 1920.

Appeal from District Court, Harrison County; P. O. Beard, Judge.

Action by Haywood Callicut against Pearl Wight, receiver, and others. Judgment for plaintiff, and defendants appeal. Affirmed.

The appellee and a fellow workman were directed by their foreman to fasten two cars together with chains, so that the switch engine could switch the same. The drawhead of one of the cars, which was in a line of cars, was gone. While the appellee and a fellow workman were in between the two cars, chaining them together, the switch engine suddenly pushed the cars together, mashing appellee in his hips and back, and inflicting grievous injuries, for which he sues. The petition alleged (1) failure of the defendant, engaged in interstate commerce, to equip the car with couplers that would couple by impact, as required by the federal Safety Appliance Act (U. S. Comp. St. §§ 8605-8612) and (2) negligence of the defendant's employees in moving the switch engine against the car at the time. The defendant filed a general denial. The court, after hearing the evidence, peremptorily instructed the jury that the defendant was liable to the plaintiff for the injury, and left to the jury for decision the question of amount of the damages only.

We find that the defendant was guilty of negligence proximately causing the injury in the act of the switchman Duncan causing the operatives of the switch engine to back the engine against the cars at the time, as pleaded and that the amount of damages as found by the jury was warranted by the proof. It was proved that the Texas & Pacific Railway extends from El Paso, Tex., via Marshall, to Shreveport and New Orleans, La., and that a great number of trains are operated over this road each day, engaged in interstate commerce between Louisiana and Texas. There were some 6 or more cars standing on the track at the reclamation plant of the railway at Marshall. One of the cars was a flat car loaded with iron rails, that had the drawhead pulled out of the east end. It is not shown whether this car had been loaded with rails in the yards at Marshall or had come in from the main line. Some of the cars at the reclamation plant had been unloaded, and especially a box car which was ready to go back into service on the main line. A switch engine headed west came in on the track east of the said string of cars. The switch engine had 4 cars in front of it. The switching crew consisted of the engineer, fireman, foreman of the crew, and two switchmen. The switch foreman saw that the car in question had no drawhead, and called upon the foreman of the reclamation plant to cause the car to be chained up to the next car, so that it and all the other cars could be transported to another track. It was not the duty of the switchman to chain the car. The foreman of the reclamation plant then directed the appellee and another workman to chain the car. The appellee and the other workman were not in the train service of the defendant, but were laborers in the shop. The foreman of the reclamation plant and the switch foreman were standing near the appellee when he was at work. Suddenly and without any warning the switch engine backed the cars against the car being chained, and mashed appellee to a serious extent. In explanation of this sudden movement of the switch engine the engineer testified as follows:

"I received a signal that came from Duncan. He follows the engine, and always stands close enough so that the engineer can get his signal, and he gets it from the man out of sight of the engineer. He passes it to him, and he then passes it to me. He gave me the signal to come ahead. Duncan was on the tip of the west end of the box car, which was the second car from the engine. When he gave me the signal, I obeyed it and started the engine west. * * * The signal was given by Duncan by the movement of his hand. There is no doubt in my mind whatever about it being a...