Texas & New Orleans Railroad v. McCoy

117 S.W. 446, 54 Tex. Civ. App. 278, 1909 Tex. App. LEXIS 194

• Court: Court of Appeals of Texas
• Decided: March 3, 1909
• Status: Published

Opinion

FLY, Associate Justice.

—This suit is based on a claim for damages arising from personal injuries sustained by appellee, an employe of appellant, while engaged in coupling a tender to a locomotive. It was alleged that appellee was employed as an engine wiper in the roundhouse of appellant, in the city of Houston, but that on April 22, 1907, he was directed by his foreman to assist in coupling a tender to a new engine which had a coupling apparatus consisting of three separate bars which had to be manipulated at the same time in making a coupling, and which could not be accomplished with reasonable safety to the employes without three men being engaged in the coupling, one for each bar. That in endeavoring to hold up the middle and one of the side bars appellee got underneath them and sought to guide them into the sockets of the engine, and his head was caught between the bars and crushed as they came together. He pleaded his youth and inexperience and ignorance of the danger. Appellant filed a general demurrer and general denial, and pleaded contributory negligence and assumed risk. A trial by jury resulted in a verdict and judgment for appellee in the sum of $9,000.

The evidence shows that appellee, a negro about twenty-one years of age, was in the employ of appellant as an engine wiper, and was ordered by his foreman to assist in coupling a tender which had three bars, the largest in the middle, to a locomotive. To do this the three bars had to be raised and held so that each would enter a socket in the engine. The bars were rounded at the ends, so that they were smaller there than at other points, and would the more readily enter the sockets. Upon the rounded corners of the ends of the bars striking the sockets they would glide into them and this would suddenly bring the bars closer together. Appellee being ignorant and inexperienced in the work of coupling such a tender and locomotive, placed his back towards the tender with his arms under one of the side bars and the middle bar, which were very heavy, and with his head between the bars guided 'them to the sockets, and when they slipped in they were suddenly brought against appellee’s head, inflicting serious and permanent injury on him. He was not warned by the foreman of the dangers incident to the work, although" he knew of the inexperience of appellee and knew of the dangers of the service.

The first and third assignments of error assail the action of the court in refusing to strike out the testimony of J. B. Hanks, who testified that he had been in the railroad business twenty-three years, during seventeen years of which he was a locomotive engineer, and that he was familiar with the construction of engines, locomotive engines and tenders and their coupling appurtenances. He also testified: “I am familiar with the coupling apparatus of these three-bar engines.” He then explained that the bars were rounded at the ends so that they would enter the sockets, and that when so entered they would move towards each other with great force, and that no inexperienced man should undertake the task of coupling the tender’ to such an engine, and that it would take three men to safely perform such a coupling. All of this was testified to without objection, but on the cross-examination it was elicited that the testimony of the witness as to the coupling of three-bar engines was based on a coupling he saw made with such an engine after the institution of this suit. Appellant then moved the court to exclude all the testimony of the witness as an expert with reference to the proper method of coupling the three-bar engines, on the ground that' he was not an expert. The witness on further examination stated that he had seen engines coupled thousands of times, but had only once seen a three-bar engine coupled. He further stated: “I would know just as well how to properly make a coupling on this kind of an engine as if I had done it a thousand times. . . . From my experience as an engineer I am able to tell of the dangers and methods of mak ing a coupling on this particular engine; without my experience as an engineer I could not tell of .them; I would not know of them.”

The witness fully qualified himself as an expert in the coupling of trains. He was skilled in that particular trade and he could have testified as to the dangers of the peculiar coupling of the engine in question upon a full description of it without ever having seen it, and if it appeared that he was fully acquainted with the mechanism and operation of the peculiar coupling it would not matter whether he gained his knowledge by having examined it and having seen it in operation one time or a thousand times. It was a matter pertaining to his trade or calling. The fact that the witness had seen the coupling in operation only once might go to the weight of his testimony, but not to the competency of it. The court did not err in refusing to strike out the evidence. In this connection it may be noted that after appellant had objected to all the testimony of the witness Hanks, he was again cross-examined by appellant and all of the evidence objected to again brought out, and it is in no position to object to the evidence.

Appellant objected to the statement of the witness, Dr. Kyle, in connection with the condition of appellee, that “his mental condition is impaired in every way,” the ground of objection being that there was no pleading to sustain it. It was alleged in the petition that appellee was “permanently incapacitated to perform any mental or physical labor.” That is a general allegation, but sufficient in the absence of a special exception to it to authorize the admission of the evidence. Further, the evidence objected to was brought out on the cross-examination, and practically the same evidence had passed unchallenged in another part of the cross-examination. Appellant objected to the one statement alone, and before in the cross-examinatian the witness stated, “Can not coordinate his movements; he has the power but he hasn’t the ability to direct the movements with that hand that he can with the right, nor has he the mental condition to do so, his mental condition is also impaired.” -That went in without objection. Appellant is in no position to complain. A party has no right to object to evidence brought out in response to his questions on cross-examination.

The charges complained of in the fourth and fifth assignments are not open to the criticisms directed against them. The charge, considered as a whole, presents the law of the ease in a clear manner. The jury was instructed that appellee could not recover unless he had exercised ordinary care in his endeavor to couple the tender and locomotive. The charge presented every issue raised by the facts.

The sixth assignment of error is disposed of by our conclusions of fact. It can not be said as a matter of law that appellee was guilty of contributory negligence in placing his head between the bars. The question was one for the jury. He was young and inexperienced and appellant knew it and should have warned him of the dangers incident to the service required of him. Appellee was ordered to perform a service outside of the regular line of his employment, and it was the first time that he had ever performed such service, and being ignorant and inexperienced, and these facts being known to appellant’s foreman, appellee should have been informed of the peculiar dangers that attended the service. (Galveston, H. & S. A. Ry. v. Hughes, 22 Texas Civ. App., 134.)

So far as the special charge on assumed risk was correct and applicable to the facts, it was given in the charge of the court and the court properly refused to give the charge requested by appellant. The charge ignores the facts that appellee was ignorant and had never before undertaken to couple an engine with three bars, and could have known nothing of the dangers attending such service. The court instructed the jury: “If you believe from the evidence that the danger of making the coupling in the position as attempted by plaintiff was a risk that was known to him, or that it was one that was so open or obvious that a person of ordinary intelligence with such knowledge and experience as plaintiff had, if any, would have learned of and avoided by the use of ordinary care in the performance of his duties, then plaintiff is deemed in law to have assumed the risk, and if you so find, let the verdict be for the defendant.” That charge was amply sufficient, and the requested charge was not the law of the case. Appellee could not have assumed risks which his ignorance and inexperience prevented him from knowing. (Galveston, H. & S. A. Ry. v. Renz, 24 Texas Civ. App., 335; Rice v. Dewberry (Texas Civ. App.), 93 S. W., 715.)

The charge, the rejection of which is complained of in the eighth assignment of error, was properly refused because it sought to inject an issue not made by the evidence, and which had been withdrawn in the charge of the court, from the jury. The court instructed the jury that the only ground of negligence relied. on by appellee was the failure to instruct him as to the dangers of the service, and the court very properly would not permit appellant to drag in something that could only tend to confuse the minds of the jury.

Counsel for appellee in his- closing address to the jury reminded the jury, composed of white men, that his client was a negro and that he felt sure that they would not permit racial prejudice to influence their verdict, and that he was entitled to the same rights in court as the white man was, and stood on the same plane and was the equal of the white man before the law. The appeal was not to any race prejudice, but, on the other hand, was an appeal for justice and a reminder that the laws of Texas know no color, and we do not feel inclined to hold that it 'was improper. But, if it was not, a legitimate appeal, it was rendered harmless by an instruction to the jury by the court that the race of appellant had nothing to do with the case. How prejudice and passion could be aroused in the minds of a Texas jury of white men in favor of a negro, by the information that the latter had the same rights before the law as a white man, is inconceivable to- us and no attempt is made to show how they could have been engendered, and yet it is urged that the speech caused the jury to render an excessive verdict. Appellee was, when hurt, a strong, vigorous negro, about twenty-one years of age, and earning $1.50 a day. His head was crushed in such a manner that the blood ran out of one of his ears for eleven days. His skull was fractured at the base, and an operation became necessary to take out the clotted blood. One side is partially paralyzed. A piece of the skull was removed, and appellee has not a free use of his hands, and his mind was impaired. It was in evidence that he will never be able to perform any work. His injuries are permanent. His eyesight is affected so that he has double vision and that condition of the eyes is permanent. These injuries considered with the suffering endured by appellee completely answer the complaint as to excess in the verdict. The judgment is affirmed.

Affirmed.

Writ of error refused.