Houston Belt & Terminal Ry. Co. v. Stephens

155 S.W. 703, 1913 Tex. App. LEXIS 878

Opinions

HARPER, C. J.

This suit was brought by plaintiff, Joe K. Stephens, to recover damages for personal injuries alleged to have been inflicted upon him while in the service of the defendant railway company as ear checker, on or about September 29, 1908.

Plaintiff alleged “that at the time of his injury he was a minor, without any .lawful guardian of his person or estate, and that on -September 29, 1908, lie was 18 years of age, .and was then and there employed by appellant as one of its car checkers in its yards in .and near Houston, Harris county, Tex.; that it was the duty of the car checkers to enter •the numbers and initials and the seal numbers of cars received by appellant upon its railway in said yards in a book provided by .appellant for that purpose; that, in the performance of said duties, it was required of ■car checkers to go into the yards of appellant and ride and hang upon cars moving therein and between the same, and that it was usual and customary for them to do that, as well as for divers others of appellant’s employes performing duties in such .yards, which custom was well known to appellant, or would have been, by the use of ordinary care, and appellant acquiesced therein; that appellant’s yardmaster or yard foreman, who was thereto duly authorized, ■directed, required, and permitted appellee to ride cars moving in its said yard and between yards in the performance of his duty under the circumstances he was when injured; that appellee, being so directed, required, and permitted, and seeing other car checkers and ■other of appellant’s employés riding upon cars in said yards in the performance of such duties, believed it was proper and right for him to ride thereon, and that, after checking certain cars in the said ‘old yard,’ he undertook to get on a caboose attached to .a string of cars which was moving in the direction of the depot on Preston street for the purpose of riding thereon to the depot where he was to leave the book in which he had ■entered the numbers, etc., of said ears, as was his duty to do, and as he was undertaking to get on said caboose, or just after he had gotten on the step thereof, he came in contact with an upright switch stand, which knocked him down, and caused the wheels of the caboose to run over his right foot and injure the same so that it had to be, and was thereafter, amputated about two inches .above the ankle; that appellee, when he entered the service of appellant, and at the time of his injury, was not only a minor, but was inexperienced in the work of checking cars and of the manner of doing it, and was ignorant of the dangers attending such work, and appellant and those of its agents intrusted with the duty of employing appel-lee and in directing him in his work knew, -or in the exercise of ordinary care would 'have known, of his minority, inexperience, and ignorance, and would, in the exercise of such care, have foreseen that he would probably ride and hang on the moving cars in .said yards in the performance of his duty, .and so knowing they carelessly and negligently failed to instruct him in the perform.ance of his duty as car checker, and failed to warn him not to, ride or hang onto the jars, and failed to warn him of the danger to -which he would be exposed when getting on or riding on cars passing the said switch stand; and appellee alleges that said switch stand was maintained in such proximity to its railway as to be a menace to the lives and limbs of those of its employés whose duties required them to get on and ride on cars passing said switch stand under the circumstances appellee was doing when injured. Appellant’s answer consisted of : (a) General demurrer; (b) general denial; (e) specially denying that it was any part of ap-pellee’s duty, in the service of appellant, to get upon said caboose while the same was in motion, and on the occasion of his alleged injury, and that said act upon the part of appellee was not necessary or incident to the performance of any duty he owed to appellant as car checker, and that said act of appellee in getting upon said caboose, under the circumstances, was without authority from appellant, etc.; (d) assumed risk; (e) contributory negligence; (f) unavoidable accident.” Judgment for plaintiff.

First assignment of error complains of the court’s refusal to give a peremptory charge for the defendant, because the undisputed evidence shows that appellee, when the accident occurred, was a trespasser or licensee, because he had no duty to perform as car checker in connection with the train or caboose from which he was knocked by the switch stand, but that he voluntarily, and without any necessity growing out of his work as car checker, but for his own convenience, got upon said moving caboose, and that the evidence fails to show that the appellant had failed to perform any duty which it owed appellee as a trespasser or licensee. The question is, Was the plaintiff, under the facts of this case, a licensee or a trespasser in .taking the position he did upon the train from which he was knocked by the switch stand?

[1] If the plaintiff was required or expected to ride upon the freight train, or that his duties required him to ride thereon, then he would have been acting within the line of his duties, and, being a minor, it would have been the duty of the company, if it would avoid liability for accidental injury to him, to warn him of the dangers attendant thereon; but, if he was not, then there was no duty devolving upon the company, and plaintiff was a mere licensee, and as such the law is he takes the premises as he finds them. Lynch v. T. & P. Ry. Co., 133 S. W. 522; St. Louis S. W. Ry. Co. v. Spivey, 97 Tex. 143, 76 S. W. 748.

[2] The whole of the evidence bearing upon the aforesaid proposition adduced upon the trial is as follows: Plaintiff testified: “Chief Clerk Hope employed me to work as car checker. The way I did the work was: I had a book called a seal record, and when a train came in I would go out and get the seals; some were numbers and some letters; some were on the side door and some on the end door; when I got them I wrote them in the book. The yard was about two miles long, and my duties required me to cheek cars throughout the yard. There were about 18 or 20 trains a day, and I would go out and check a train whenever the chief clerk told me to, and take the book back to the office. To get from the old yard to the south yard or yard 49, I would have to ride; did not have any particular engine or train, but would ride any that came to hand. If the cars in any train I was cheeking were moved, I would ride them to wherever they stopped. I would get on the side, on the top, on the handle bars. I have done that often. And after I got through checking a train, if there was an engine or train going toward the depot,'I would ride it. The yardmaster’s name was Mayfield. I saw him often. He was where he could see me; we were both working in the same place; he has told me to ride cars. The chief clerk nor the yardmaster ever told me not to ride the ears, and my idea was I had to do it or I couldn’t do the work. I had just finished checking a train and was going back to the depot; did not have to check any more that night; my work wasn’t finished; I had to take the seal book to the office; when I finished, I was about two blocks south of the depot. That train that was passing, that I was injured by, was a north-bound freight train; it was not my duty to check any cars in this train, and did not intend to do so. I just got on it to ride to the depot to put my seal book up, and then I would be off for the night. It was customary for any of the employés to ride if they wanted to go to any part of the yards. I rode the cars because you can do your work quicker. If the train I was checking moved, I would get on and go with it. AS to whether it is a fact that I testified in a former trial of the case that the only time I was authorized to ride trains was when I was going to or coming from the south yard, or when I was checking a train and they moved that train before I had finished that cheeking, that might be the only time I was authorized to, that was the only time he told me to ride. I was never told to ride any trains after I had finished my work for the purpose of putting up my book. Npbody ever told me not to do it.”

O. E. Mayfield, yardmaster: “I had authority to forbid any practice of the people employed in the yards that I saw proper and that applied to car checkers. I don’t believe I did tell Joe Stephens not to ride trains after he. had gotten through cheeking in'order to deliver his book. I never gave any instructions to car checkers to get on moving trains to ride to the office. Within my knowledge, while I was yardmaster, it was not the practice or custom for car checkers, after finishing their work, to get on moving trains or cars and ride to the office to leave their books, and I don’t remember seeing them do it. He had no business on the cars when they were switching them up and down.”

The undisputed evidence is that, upon the occasion of the injury, he was required to check the train of cars that had arrived in the yard at about 7 o’clock p. m., and that, while engaged in this work, he was joined by Clifford Joplin, another car checker; just about the time they had finished checking this train of cars and were ready to return to the office in order to put up the seal book, a through Trinity & Brazos Valley freight train came along, headed toward the depot, where appellee intended to go in order to put up the seal record. The depot was about 2% or' 3 blocks away, and both the boys attempted to ride the train to the depot. Joplin succeeded in getting safely upon the caboose, but appellee, when he had stepped upon the steps of the caboose, came in contact with a switch stand and was knocked from the caboose and the rear truck ran over his foot, which was afterwards amputated. Appellee admits that he had nothing to do, as car checker, with this train. It was a through train which did not stop, a Trinity & Brazos Valley freight, so, if he was in the line of his duty, it was because his duty required him to return the seal record to the office and to ride this train in doing so.

The evidence is silent as to any business relation between the appellant and Trinity & Brazos Valley Railway Company. If, then, it be conceded that appellee was justified in believing it to be his duty to ride the trains in checking the cars, it does not follow that he was in the line of his duty in jumping upon a moving train with'which he had no' duty to perform. The appellee does not charge, nor is there any evidence, that the appellant, through any of its agents, promulgated any rule or gave appellee any instructions to the effect that he should ride any train or switch engine, and, if he had the right to ride the trains and cars at any time, it was not because he was required to do so, but because,' under all the facts, a reasonably prudent person would have concluded that his employer expected him to do so to expedite the work in hand; and this, if based upon anything, was because the plaintiff and other employés of the appellant habitually rode on freight trains and engines from one part of the yard to another, and that such course of conduct was known to the officers and agents of the railway company ; but this would only authorize him at most to ride the trains and engines in the discharge of his duties as car checker, and, when he attempted to swing.upon the train with which he had no business connection, he was beyond any invitation extended to him and became a trespasser, and as such he took the yards as he found them. St. Louis S. W. Railway Co. v. Spivey, 97 Tex. 143, 76 S. W. 748.

[3] Second and third assignments of error ■complain that, the court erred in permitting plaintiff, testifying in his own behalf, to testify, over the objection of defendant, that it was his duty, and that he believed it to be his duty, to ride cars in the performance of his duties as car checker. This was the very question at issue in this case whether it was the duty of plaintiff to ride the cars, or whether he was a licensee or trespasser when he rode the car in question, and it was for the jury to determine from all the facts and circumstances, and not a question upon which the witness could express an opinion. Railway Co. v. McSwain, 55 Tex. Civ. App. 317, 118 S. W. 874.

[4] Fourth and fifth assignments of error complain of the following charge of' the court: Fourth assignment of error: “The court erred in that portion of its general charge to the jury which reads as follows: ‘Now, therefore, if you believe from a preponderance of the evidence that Joe K. Stephens, the plaintiff, was in the employ of the defendant as a car checker, and that it was his duty to enter in a book, provided by defendant for that purpose, the numbers and initials and the seal numbers of the cars received by defendant in its yards in and near the city of Houston, Tex., and believe defendant expected plaintiff and its other car checkers to ride cars which might be passing when going to or returning from their work in the yard, then it was the duty of the defendant to use ordinary care to furnish plaintiff and its other car checkers a yard that was reasonably safe for performing the work in the manner expected of them-; and if you believe from a preponderance of the evidence that the plaintiff, in the performance of his duty, took the seal numbers of certain cars in defendant’s yards in this city, and that after doing that he got on the steps of a caboose attached to a train that was then passing, to ride thereon to the depot, for the purpose of leaving the book in which the seal numbers had been entered, and believe that in so doing he was performing his duty in the manner expected of him by the defendant under the circumstances, and believe that, after he had got on the said step, he came in contact with an upright switch stand, and was thereby knocked down and his right foot run over by the wheels of the caboose and injured at the time and place and in the manner substantially alleged in his petition, and you further believe, from a preponderance of the evidence, that the said switch was maintained in such proximity to the track on which the said caboose was moving as to be a menace to the safety of defendant’s car checkers in the performance of their duty in the manner they were expected to perform it, and you believe that defendant, in so maintaining the said switch stand, if it did that, should have foreseen that plaintiff or some other car checker would, in the performance of his duty, in the manner expected of him, be injured by coming in contact with the said switch stand, whilfe riding upon cars passing the same under circumstances similar to those under which the plaintiff was injured, and was guilty of negligence, and believe that such negligence was thé proximate cause of the injury of plaintiff, and you do not believe plaintiff himself was guilty of contributory negligence or assumed the risk of injury, you will return a verdict for the plaintiff and assess his damages according to the rule hereinafter given you, but, unless you so find, you will return a verdict for the defendant.’ ” Fifth assignment of error: “The court erred in that portion of its general charge which reads as follows: ‘Or, on the other hand, if you do not believe, from a preponderance of the evidence, that the plaintiff was injured at the time and place and in the manner substantially as alleged by him in his petition, you will, without inquiring further, return a verdict for defendant; or, if you do not believe that plaintiff undertook to get on the caboose, and was injured after he had gotten on the step thereof by coming in contact with the switch stand, or if you believe he was thus injured, but yet do not believe that the plaintiff was expected, in the performance of his duties, to ride on the car under the circumstances, or if you believe that plaintiff attempted to get on the caboose step, and in so doing ran against the switch stand and was thereby caused to fall and be injured, or if you believe plaintiff’s injury was due to dangers and risks and conditions which were ordinarily incident to his service, or if you do not believe the injury of plaintiff or some other car checker, under like circumstances, in view of the way plaintiff was expected to perform the services, was one which should have been foreseen as likely to occur under the circumstances, you will, in either, any or all of such cases, likewise return a verdict for defendant’ ”

The question is, Was plaintiff acting within the line of his duties in riding upon the train where he was hurt, in returning to the office to deliver his seal record, or whether he was a licensee or trespasser, and he may have been doing that which the company’s agents expected him to do, and yet not be in line of his duties in riding a train or car?

All matters, such as did his employers require" him to ride the trains to and from the yards, or were the facts and circumstances sufficient to lead plaintiff to believe that they required or expected him to ride, or that the facts and circumstances indicated that the duties themselves required him to ride the trains with or without instructions, always taking into consideration the age and experience of the plaintiff, are proper matters for the jury to consider in determining whether the plaintiff was acting in the line of his «duties as he saw it. The actions of the agents of the defendant company, or their failure to act, must have the effect of impressing the plaintiff with the fact that he had more than the tacit consent of de fendant. They must he sufficient to enable the jury to determine affirmatively that he rode the cars in the performance of his duties as his employer expected him to do them, and the charge of the court should be confined to the question, Was plaintiff acting within the line of his duties as ear checker in riding the train from which he was knocked and hurt, from his (plaintiff’s) viewpoint? and not what may have .been expected of him by the employSs of the railway company, as conveyed by this charge, whether the plaintiff knew of such expectation or not.

The seventh assignment presents no error. The expression of opinion complained of was by an expert who was qualified to express it.

[5] The eighth assignment is disposed of by what has been said. And the ninth assignment, which raises the question that the plaintiff was riding on a Trinity & Brazos Valley train, over which defendant had no control, and therefore was not in line of his duty, cannot be considered because defendant has not pleaded it, and, on the other hand, has pleaded that “the train upon which plaintiff was .riding at the time he was hurt was the train of defendant railway company.”

In view of the testimony, we are of the opinion that the court did not err in refusing special charge requested by appellee, as complained of by appellee’s cross-assignment of error.

Reversed and remanded.