Wight v. Callicut

Court of Appeals of Texas

Wight v. Callicut

225 S.W. 389, 1920 Tex. App. LEXIS 1026

CourtCourt of Appeals of Texas

DecidedNovember 27, 1920

DocketNo. 2323. [fn*]

StatusPublished

This text of 225 S.W. 389 (Wight v. Callicut) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Wight v. Callicut, 225 S.W. 389, 1920 Tex. App. LEXIS 1026 (Tex. Ct. App. 1920).

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Opinion

LEVY, J.

(after stating the facts as above). [1, 2] The peremptory instruction to the jury, which is complained of by the appellant, was given upon the two grounds: (1) That the defendant was engaged in interstate commerce as common carriers, over railroads, and that the car in question was being used under such circumstances as to bring it under the Safety Appliance Laws of the federal government; and (2) that the uncontroverted evidence showed that there was common-law negligence in the operation of the switch engine proximately causing the injury to the appellee. The evidence in the record is without conflict. It is believed that the facts, as *391 a matter of law, bring tbe case within the Safety Appliance Act of Congress. Southern Ry. Co. v. U. S., 222 U. S. 20, 32 Sup. Ct. 2, 56 L. Ed. 72; L. & N. Ry. Co. v. Layton, 243 U. S. 617, 37 Sup. Ct. 456, 61 L. Ed. 931; T. & P. Ry. Co. v. Sprole, 202 S. W. 985. And the uncontroverted evidence shows, we think, that the defendant is liable for damages in consequence of the movement of the switch engine which caused the injury.

The facts clearly show that the switchman Duncan gave the signal to the engineer to move the engine, and that the giving of such a signal was not authorized by the foreman of the switch crew, or even the other switch-man. The switchman Duncan was only au-tñorized to pass signals that were given to him. If, therefore, the engine was moved by a premature and unauthorized signal through carelessness, the negligence in so doing would render the defendant liable. There is no evidence that the switdynan Mia so used himself in walking on the car of rails as to reasonably cause Duncan to believe he was in fact signaling him to pass the signal to the engineer to move the cars. The switch-man Elia positively denies giving any signal. The record establishes conclusively that Duncan gave an authorized signal to move the train, and that his act was, as .a matter of law, negligent. The tidal court did not err in so holding.

We think the assignment complaining of the excessive verdict should be overruled.

Affirmed.

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LEVY, J.

(after stating the facts as above). [1, 2] The peremptory instruction to the jury, which is complained of by the appellant, was given upon the two grounds: (1) That the defendant was engaged in interstate commerce as common carriers, over railroads, and that the car in question was being used under such circumstances as to bring it under the Safety Appliance Laws of the federal government; and (2) that the uncontroverted evidence showed that there was common-law negligence in the operation of the switch engine proximately causing the injury to the appellee. The evidence in the record is without conflict. It is believed that the facts, as *391 a matter of law, bring tbe case within the Safety Appliance Act of Congress. Southern Ry. Co. v. U. S., 222 U. S. 20, 32 Sup. Ct. 2, 56 L. Ed. 72; L. & N. Ry. Co. v. Layton, 243 U. S. 617, 37 Sup. Ct. 456, 61 L. Ed. 931; T. & P. Ry. Co. v. Sprole, 202 S. W. 985. And the uncontroverted evidence shows, we think, that the defendant is liable for damages in consequence of the movement of the switch engine which caused the injury.

The facts clearly show that the switchman Duncan gave the signal to the engineer to move the engine, and that the giving of such a signal was not authorized by the foreman of the switch crew, or even the other switch-man. The switchman Duncan was only au-tñorized to pass signals that were given to him. If, therefore, the engine was moved by a premature and unauthorized signal through carelessness, the negligence in so doing would render the defendant liable. There is no evidence that the switdynan Mia so used himself in walking on the car of rails as to reasonably cause Duncan to believe he was in fact signaling him to pass the signal to the engineer to move the cars. The switch-man Elia positively denies giving any signal. The record establishes conclusively that Duncan gave an authorized signal to move the train, and that his act was, as .a matter of law, negligent. The tidal court did not err in so holding.

We think the assignment complaining of the excessive verdict should be overruled.

Affirmed.

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