BROWN, Associate Justice.
James Pope sued the St. Louis Southwestern Railway Company of Texas to recover damages for personal injuries sustained by him alleged to be due to the negligence of the company. A trial by jury resulted in a verdict and, judgment for plaintiff and defendant has appealed.
The facts are as follows: Plaintiff on the occasion in question was an experienced brakeman in the service of defendant and was familiar with its line, sidings, rules and customs. At a station on appellant’s line called Mount Pleasant there were five side tracks called storage tracks. These were not used for the placing of cars for loading or unloading, but were designed and used for the storing of cars by incoming trains to be incorporated in subsequent outgoing trains.
There was in force at the time in question the following rule which had been promulgated by the company:
“Conductors must see that brakes are set on cars they leave on sidings, and when the siding is on a grade, they must, when practicable, couple all the cars together; and in addition to setting the brakes the wheels must be blocked and safety switches properly adjusted. , When not in use safety switches must be left open. In switching, trainmen must know that brakes are in good order before cutting off cars.”
As to whether it applied to the sidings at-Mount Pleasant the evidence is conflicting, but is ample to sustain the finding not only that the sidings at that point were upon such a grade as came within the purview of the rule, but that they had been so regarded by the company and its employes.
At sidings not on a grade or where it was necessary to place or “spot” cars for the convenience of those whose duty it was to load and unload them the rule did not apply.
At the date of the accident plaintiff came in on a freight train containing twenty-eight cars. When they reached Mount Pleasant it became necessary to back in on one of the storage tracks to store some cars. In doing this it was proper to back the train against a string of ears already on the siding and push them toward the opposite end of the siding. Plaintiff occupied the position of rear brakeman on the train and it was his duty to remain at the rear end of the train; to see that the coupling was made when the train touched the standing cars; to mount the standing cars, walk on top of them to the rear end of them (that is to say, the end farthest from the engine), to see that the brakes were set and to signal the engineer when they had been pushed far enough. It was the duty of the middle brakeman to signal the engineer to back up in pushing the cars in and to transmit to him the signal of plaintiff, when the cars had been pushed far enough. When the train in question entered the siding plaintiff occupied a position at its rear. When it came in contact with the standing-cars he coupled the train to the nearest car and the engineer proceded to push them in the same direction. Plaintiff immediately climbed upon the nearest standing-car, and, assuming them all to be coupled together as they appeared to be, proceeded to walk .to the rear in the discharge of his' duty. When he reached the opening or space between the second and third car from the end the engineer suddenly stopped the engine, causing the last two cars which were not coupled to" the others to separate from the train and continue their motion. The train was stopped and the separation occurred on the instant that plaintiff was about to step from the third to the second car to the last, and he fell through the space thus made to the ground, injuring him as alleged. As the part of the train attached to the engine was stopped distantly it did not run ovei; plaintiff, his injuries being due entirely to his fall.
There is evidence to support, the finding that the train was moving at the rate of four to six miles an hour, and that without warning and without slowing down it was instantly brought to a standstill. This was not done at the signal of plaintiff but in response to a signal of the middle brakeman.
The coupling apparatus on all the cars was automatic and in good condition, but the lever on the coupling where the separation occurred was left fastened up so that it could not be coupled by mere contact. The cars on the siding to which plaintiff coupled the train were all standing close together as if coupled to each other and were in fact all coupled except where the separation occurred. There were other cars on the siding standing apart from these in question and not coupled to them, but they were some distance away and did not have the appearance of being coupled.
The main purpose of the rule requiring them to be coupled when left
on grade sidings was to make sure they would not by any chance roll out on the main track and wreck passing trains, the idea being that cars with defective brakes would thus be held by the brakes on the other cars.
Plaintiff knew that on one or two occasions other brakemen had failed to observe the rule at points where the conditions required its observance, but he and others testified that it was generally observed and these negligent lapses were the exception.
A fair interpretation of the rule required cars apparently in contact with each other to be coupled though there might be an open space between two sets of cars on the same siding.
As to whether the rule was as often breached as observed, and as to whether the rule if in force was applicable to this particular siding, the evidence was in sharp conflict. We think the record supports the conclusion that the rule was in force, was applicable to the siding in question, was generally observed, that plaintiff did not assume the risk of the negligent violation of the rule by other employe.,, and was not guilty of contributry negligence in acting upon the assumption that the cars were coupled as they appeared to be and could be safely crossed.
The employes of the company were negligent in leaving the cars uncoupled when thus apparently coupled, and the engineer was negligent in suddenly and violently stopping the train.
The accident would not have happened but for the sudden stopping of the train and would not have resulted from that cause but for the uncoupled cars. Plaintiff’s injuries were the result of the two causes combined.
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BROWN, Associate Justice.
James Pope sued the St. Louis Southwestern Railway Company of Texas to recover damages for personal injuries sustained by him alleged to be due to the negligence of the company. A trial by jury resulted in a verdict and, judgment for plaintiff and defendant has appealed.
The facts are as follows: Plaintiff on the occasion in question was an experienced brakeman in the service of defendant and was familiar with its line, sidings, rules and customs. At a station on appellant’s line called Mount Pleasant there were five side tracks called storage tracks. These were not used for the placing of cars for loading or unloading, but were designed and used for the storing of cars by incoming trains to be incorporated in subsequent outgoing trains.
There was in force at the time in question the following rule which had been promulgated by the company:
“Conductors must see that brakes are set on cars they leave on sidings, and when the siding is on a grade, they must, when practicable, couple all the cars together; and in addition to setting the brakes the wheels must be blocked and safety switches properly adjusted. , When not in use safety switches must be left open. In switching, trainmen must know that brakes are in good order before cutting off cars.”
As to whether it applied to the sidings at-Mount Pleasant the evidence is conflicting, but is ample to sustain the finding not only that the sidings at that point were upon such a grade as came within the purview of the rule, but that they had been so regarded by the company and its employes.
At sidings not on a grade or where it was necessary to place or “spot” cars for the convenience of those whose duty it was to load and unload them the rule did not apply.
At the date of the accident plaintiff came in on a freight train containing twenty-eight cars. When they reached Mount Pleasant it became necessary to back in on one of the storage tracks to store some cars. In doing this it was proper to back the train against a string of ears already on the siding and push them toward the opposite end of the siding. Plaintiff occupied the position of rear brakeman on the train and it was his duty to remain at the rear end of the train; to see that the coupling was made when the train touched the standing cars; to mount the standing cars, walk on top of them to the rear end of them (that is to say, the end farthest from the engine), to see that the brakes were set and to signal the engineer when they had been pushed far enough. It was the duty of the middle brakeman to signal the engineer to back up in pushing the cars in and to transmit to him the signal of plaintiff, when the cars had been pushed far enough. When the train in question entered the siding plaintiff occupied a position at its rear. When it came in contact with the standing-cars he coupled the train to the nearest car and the engineer proceded to push them in the same direction. Plaintiff immediately climbed upon the nearest standing-car, and, assuming them all to be coupled together as they appeared to be, proceeded to walk .to the rear in the discharge of his' duty. When he reached the opening or space between the second and third car from the end the engineer suddenly stopped the engine, causing the last two cars which were not coupled to" the others to separate from the train and continue their motion. The train was stopped and the separation occurred on the instant that plaintiff was about to step from the third to the second car to the last, and he fell through the space thus made to the ground, injuring him as alleged. As the part of the train attached to the engine was stopped distantly it did not run ovei; plaintiff, his injuries being due entirely to his fall.
There is evidence to support, the finding that the train was moving at the rate of four to six miles an hour, and that without warning and without slowing down it was instantly brought to a standstill. This was not done at the signal of plaintiff but in response to a signal of the middle brakeman.
The coupling apparatus on all the cars was automatic and in good condition, but the lever on the coupling where the separation occurred was left fastened up so that it could not be coupled by mere contact. The cars on the siding to which plaintiff coupled the train were all standing close together as if coupled to each other and were in fact all coupled except where the separation occurred. There were other cars on the siding standing apart from these in question and not coupled to them, but they were some distance away and did not have the appearance of being coupled.
The main purpose of the rule requiring them to be coupled when left
on grade sidings was to make sure they would not by any chance roll out on the main track and wreck passing trains, the idea being that cars with defective brakes would thus be held by the brakes on the other cars.
Plaintiff knew that on one or two occasions other brakemen had failed to observe the rule at points where the conditions required its observance, but he and others testified that it was generally observed and these negligent lapses were the exception.
A fair interpretation of the rule required cars apparently in contact with each other to be coupled though there might be an open space between two sets of cars on the same siding.
As to whether the rule was as often breached as observed, and as to whether the rule if in force was applicable to this particular siding, the evidence was in sharp conflict. We think the record supports the conclusion that the rule was in force, was applicable to the siding in question, was generally observed, that plaintiff did not assume the risk of the negligent violation of the rule by other employe.,, and was not guilty of contributry negligence in acting upon the assumption that the cars were coupled as they appeared to be and could be safely crossed.
The employes of the company were negligent in leaving the cars uncoupled when thus apparently coupled, and the engineer was negligent in suddenly and violently stopping the train.
The accident would not have happened but for the sudden stopping of the train and would not have resulted from that cause but for the uncoupled cars. Plaintiff’s injuries were the result of the two causes combined.
The plaintiff in error challenges the correctness of the following-paragraph of the charge given by the court to the jury: “If you find from a preponderance of the evidence that it was not reasonably safe to leave cars standing together uncoupled on the side track in Mount Pleasant in question, then if you further find that the car from which plaintiff fell was uncoupled with, although standing together with the car immediately south of same, then if you further find that an ordinarily prudent person would not have left the cars uncoupled under similar circumstances, then if you further find that plaintiff, while exercising ordinary care, was injured as the direct result of said cars being left uncoupled, then you will find for plaintiff unless you find plaintiff assumed the risk of same being uncoupled, as explained under the eighth division of this charge, or was gutity of contributory negligence as explained in subdivision 8a of this charge.” This charge submits as distinct and separate ground of recovery the fact that the string of cars upon the side track at Mount Pleasant were left uncoupled. To determine the correctness of the charge we must consider it as if that were the onlv ground upon which the -plaintiff sought to recover. To su-Iain the verdict of the jury upon the claim that the condition of the cars in being uncoupled was “not reasonablv safe,” the evidence must show that such condition rendered it un«afe for the plaintiff to do the work in which he was engaged when injured, and that the danger was so
apparent that “an ordinarily prudent person,” having in view the safety of the plaintiff, or others engaged in like work, would have anticipated and provided against the danger by causing the cars to be coupled together. If the evidence was sufficient to justify the submission of that issue, of which we express no opinion, the charge as given does not submit it to the jury. The issue presented by the charge is that if the condition of the cars was not “reasonably safe,” whether the danger was to the plaintiff or to some one else, and that the plaintiff was injured by reason of that condition of the cars, then he had a right to recover. The evidence showed that there was a rule of the company which required that cars left standing upon a grade track should be coupled and blocked, and that cars left upon the grade track at Mount Pleasant uncoupled and without blocking were liable to run out upon the main track, which would be unsafe both for the cars and for persons engaged in operating trains upon the main line. Indeed there might be many phases of unsafety consequent upon that condition, and persons engaged about, tire yards might be endangered by the fact that the cars were liable to run out unexpectedly. It is apparent from the charge, taken in connection with the evidence, that the jury might have concluded that the condition of the cars was unsafe as to others than the plaintiff, and yet, under the terms of the charge, they could have found their verdict against the defendant. It was not necessary that the railroad company should have been able to anticipate that the plaintiff wojild be injured, or that any person would be injured under exactly the same conditions that the plaintiff was, but in order to render it liable the danger of injury to some person engaged in the performance of like service as the plaintiff was then engaged in should have been so manifest that the law would require the company to anticipate and provide against the injury, otherwise there can be no negligence on its part as to the plaintiff in this case. Negligence can not exist unless there is a duty to the person injured, and no duty to the plaintiff rested upon the railroad company unless the conditions were such that a prudent person would have anticipated and guarded against the occurrence which caused his injuries. 1 Shearm. & Redf. on Neg., sec. 8; Sawyer v. Railway Co., 38 Minn., 105. If all the facts grouped in the charge be true, they do not show that the railroad company owed to plaintiff the duty of coupling the cars on the side track, therefore would not support the verdict. The court erred in submitting the issue to the jury in the form in which the charge presented it.
We granted that writ of error in this case because we were of the opinion that there was no evidence of negligence by the engineer, but upon further consideration we have concluded that there was evidence which required that the court should submit that issue to the jury. As the case will be remanded for another trial, we think it proper to say that in our opinion the tenth paragraph of the court’s charge unnecessarily connects the act of the engineer in stopping the engine with the fact that the cars were uncoupled. In the absence of evidence that
the engineer knew that the cars were not coupled, under the evidence in the record the same liability would attach to the act of the engineer in negligently stopping the engine whether the cars on the side track were coupled or not. If the manner of stopping the engine would not have been negligence in case the cars were coupled, then it would not be made so by the existence of a condition not known to the engineer. We are of the opinion that while the charge might not require a reversal of the judgment, it was calculated to confuse the jury in the consideration of the issue submitted.
The trial court erred in giving the charge hereinbefore copied and the Court of Civil Appeals erred in affirming the judgment of the court below, for which errors the judgments of the said courts are reversed and the cause remanded.
Reversed and remanded.