Lancaster v. Allen

231 S.W. 148, 1921 Tex. App. LEXIS 350

• Court: Court of Appeals of Texas
• Decided: May 24, 1921
• Docket: No. 2417.
• Status: Published

Opinion

LEVY, J.

(after stating the facts as above).

[1] The court submitted to the jury, and appellant predicates error on the following question for answer:

“Did the flange on the right-hand lead truck wheel have a flat vertical surface one inch or more from the tread of the wheel when tested by the rule prescribed by the Interstate Commerce Commission?”

Rule 146, § f, being “the rule” referred to in the instruction, provided that “steel-tired wheels,” like the one in controversy, “shall not be continued in service” with “any of the following defects:” of “flange,” as claimed in this case, “having flat vertical service one inch or more from tread.” And the question required the jury to determine from the evidence whether or not “the flange on the right-hand lead truck wheel” was, in point of fact, in a prohibited condition for use in the service, “when tested by the- rule prescribed by the Interstate Commerce Commission.” The rule was in evidence before the jury, as was also the regulation requiring that the determination of worn flanges shall be made by • a prescribed metal gauge or measurement; and the metal gauge was introduced in evidence, and witnesses testified respecting whether or not the flange of the wheel in controversy was defective when the metal gauge was applied to it. The language of the question permitted, and the jury could reasonably understand, that it required them to consider all the evidence respecting the metal gauge and the measurement of the flange of the wheel by the metal gauge in determining whether or not the condition of the flange violated the plain provision of the rule. It did not exclude from the consideration of the jury, as contended by appellant, the measurement of the flange by the metal gauge. The term “when tested by the rule,” as used, includes and refers to the method of measurement adopted and required, and was intended to have that restrictive meaning. It is believed there was no reversible error in the charge, and assignments Nos. 2 and 4 are overruled. Lancaster v. Allen, 110 Tex. 213, 217 S. W. 1032.

[2] The appellant requested and complains of the refusal of the court to give the following special charge:

“In this case it appears without contradiction that the flange of the wheel on the engine in question complied with the standard established by the Interstate Commerce Commission under the act of Congress, and therefore the jury cannot find that the railroad company was negligent in that regard.”

The evidence raises the issue, we conclude, of the flange of the wheel in evidence being in a condition prohibited by the rule established by the Interstate Commerce Commission. Appellant showed by several witnesses that the flange of the wheel, when the metal gauge or measurement was applied, met and was within the requirement of the rule. Appellee, though, showed by several witnesses that in their opinion, from an actual observation and examination of the wheel, though not tested by the metal gauge, the wheel was condemnable under the rule. And the appellee, following this testimony, then showed by the evidence of the witness Mayes that a plaster cast was taken of the wheel. The witness said: “I saw the plaster cast taken off; saw it applied to the wheel. The cast you hold in your hand is the plaster cast referred to.” And then appellee offered several witnesses, who testified that the plaster cast, when the metal gauge is applied to it, shows a flange condemnable and prohibited by the rule.

[3] The plaster cast was sufficiently proven to make it the basis of having the witnesses testify that it showed by measurement of the metal gauge that the wheel of which it was a cast showed a condition prohibited by the rule. Assignments Nos. 1 and 3 are overruled.

[4] The appellant challenges questions and answers Nos. 3 and 4. In view of the pleading and evidence, the effect, we think, of these answers, and the real meaning to be given, is a finding by the jury that the “truck” of the engine was “out of tram,” making “too much pressure on the right lead wheel” to the extent and degree, in point of fact of wearing the flanges of the wheel “sharp or vertical,” proximately causing the derailment. It was alleged, and the circumstances of the case went strongly to show, that the front truck of the engine was “out of tram,” or not properly adjusted, and by reason thereof had caused the front wheel to grind against the rail long ■ enough to wear the flange to the extent that it would easily climb, as it did, the rail on a sharp curve, as in evidence, causing derailment. When the engine passed the yard switchman, just before derailment, he saw “Are from the grinding of the wheel on the rail.” And this finding of fact would, of itself, support the judgment in this case. Rule 143 of the Commission provided that “trucks shall be maintained in safe and suitable condition for service.” The wheel being worn is merely a result of the “truck being out of tram,” as found by the jury; and the liability, in this phase of the case, would arise, not upon the condition of the wheel, but upon “the truck” being in a condition not authorized by the rule of the Commission, and thus proximately clausing the derailment. Assignments of error Nos. 5, 6, and 8 are overruled.

[5] The tenth assignment of error predicates error upon allowing appellee to prove, over objection, that the deceased was in line of promotion from fireman to engineer. The proposition is:

“The chance of a locomotive fireman 45 years old to a promotion to a position with a better salary is too speculative, remote, and uncertain to be the basis for increasing the damages to be found by the jury caused by Ms death.”

The evidence shows that deceased was in line of promotion. This evidence has been permitted under the rule in Texas, and no reason is perceived why it should not apply simply because the instant case is a cause of action arising under the law of Congress. The assignment is overruled.

We have considered each of the remaining assignments, and concluded that they should be overruled. Assignments numbered 7 and 11 to 17 inclusive are overruled.

The judgment is affirmed.

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