Gulf, Colorado & Santa Fe Railway Co. v. Hockaday

FISHER, Chief Justice. Statement of the Case.—The appellee (plaintiff below) instituted this suit in the District Court of Fannin County against the appellant herein and the Honey Grove Cotton Oil Company, seeking to recover damages for personal injuries alleged to have been received about December 17, 1892, alleging in substance that prior to the time plaintiff was hurt the Honey Grove Cotton Oil Company constructed and maintained a platform and scales on one of the tracks of defendant railway company, which platform extended horizontally with the track, occupying a space between the rails, and cut a hole in the said platform on the east and outside of the said track to permit the passage of a pipe into the pit under the platform to be used in pumping water from the pit, and for the purpose of covering up the said hole the said Honey Grove Cotton Oil • Company wrongfully and negligently placed a plank over the hole in the platform, the same being laid horizontally with and near the east side of the track, which plank was there permitted to remain and be until plaintiff was hurt; that one end of the said plank stood above the surface of the said platform, so much so as to become an obstruction and dangerous to plaintiff and his fellow servants in the use of the track; that the defendant railway company knew that plaintiff and his fellow workmen used the track, knew that the plank was an obstruction to the use of the track, knew that the same was dangerous to plaintiff and his fellow workmen, and that the plank was placed upon the track with the knowledge and consent of the said railway company, defendant, for its use and benefit; that it wrongfully permitted the said hole and the said plank to remain where they were, etc.; that while attemping to make a coupling between two cars at such point, which was made more than ordinarily difficult by reason of the difference in the heights of the drawhead on the engine and the drawhead on freight car by reason of the absence of a crooked link to be used in making such coupling, plaintiff stumbled over and caught his foot under the raised end of the said plank, and was thereby thrown off his balance, his hand caught and mashed, etc.; that defendant *618 railway company knew or might have known by the exercise of reasonable care that such plank was an obstruction and dangerous to plaintiff and his fellow workmen; that plaintiff did not know that the same was there, etc. Defendant, the Gulf, Colorado & Santa Fe Railway Company, answered by general exception, general denial, and by special answers: First—Alleging that if there was any plank on the defendant’s track or any dangerous condition menacing the safety of plaintiff and his fellow-workmen by reason of the presence of such plank at the time in question, the presence of the plank and said dangerous condition was well known to the plaintiff or could have been known by the exercise óf reasonable care. Second-—-If injured as alleged by plaintiff, he, by his own negligence, contributed to the injury, in that he attempted to make a coupling between a ear and the engine when the drawhead of one was three to five inches higher than the drawhead of the other; that he attempted to make the coupling without the use of a crooked link when he well knew that the coupling could not be made with safety without such crooked link; that he attempted to make it with a glove on his hand, when he well knew that was more dangerous and hazardous to so attempt to make the coupling; that he made it in a careless and indifferent manner, without noticing for obstructions in the way of his feet liable to cause him to stumble, and without noticing where he was walking, what he was doing, or keeping a careful watch-out for the approaching car or engine which he was to couple to, and when he knew, or ought to have known, that just beyond the car to which he was going to couple there was another car on the track likely to come in contact with the car to which he was going to couple, and without looking out for such car and guarding against it striking the car to which he was attempting to couple, and by his failure to use ordinary care under the circumstances, he contributed to his own injuries. The Honey Grove Cotton Oil Company, by original answer, urged general and special exceptions to plaintiff’s petition as against it, and pleaded general denial. August 25, 1893, the demurrers of the Honey Grove Cotton Oil Company were sustained and that company dismissed. The first amended original petition having been filed subsequent to the action on the demurrers of the Honey Grove Cotton Oil Company, to-wit, February 23, 1894, thereupon came on to be heard the motion of the defendant tne Honey Grove Cotton Oil Company to strike out such parts of said amended petition as pertained to said defendant, which motion was sustained, to which the plaintiff and the defendant ■the Gulf, Colorado & Santa Fe Railway Company excepted. Trial was had August 30, 1894, and judgment for plaintiff for $3500 against the appellant herein. Conclusions of Fact and Daw.—We find that the appellee was injured substantially as alleged in his petition at the time and place there *619 charged, and that he was injured by reason of his foot being caught on a plank which was a part of the platform scales used by appellant on its track for the purpose of weighing cars. This plank projected in part above the platform scales close to the track, and, so situated, was an obstruction that was dangerous in the manner and under the circumstances alleged. That the appellee was a brakeman in the employ of appellant at the time he was injured, and while in the performance of his duties as brakeman, in attempting to couple cars, his foot came in contact with this plank and he stumbled over it, and by reason of this fact he was injured in the manner alleged. His injury, in the main, was caused by stumbling over the plank. At the time of his injury he was in the performance of his duty as a brakeman and he was in the exercise of reasonable care and caution and did not know of the defect in the platform scales caused by the plank in question projecting above it, nor was the existence of such defect so plain and obvious that he could and should in the nature of things have seen it, nor did he exhibit in failing to discover the faulty condition of the platform or defect therein resulting from the raised plank a want of caution and care, because we find that at the time of his inj ury and before, his attention was properly directed to coupling the cars, the duty he was then engaged in. The exercise of diligence in performing this duty, in the main, deprived him of the power of discovering the defect in the plank. We find that the appellant, by a proper inspection, could have discovered the condition of the plank and could have and should have discovered its dangerous condition, and that the appellant was guilty of negligence in permitting the plank and the platform to remain in this condition; and we find that appellee was not guilty of negligence that contributed to his injuries, but he was injured by reason of the negligence of appellant, as stated. The evidence, in the light of the case made by the plaintiff, warrants, these findings, and as this was the view of the j ury that tried the case, in deference to their verdict and the judgment rendered thereon, we find the facts as above stated. The charge of the court presents fully all of the law of the case raised by the pleadings and applicable to the facts. Therefore, we hold that there was no error in the charge, and there was no error in refusing the charges requested. The ninth assignment of error complains of the refusal of the court to permit the witness Campbell to testify that the Texas & Pacific Railroad kept and maintained its track at points on its road in a similar condition to the track of appellant at Honey Grove. There was no error in this ruling. The condition of the track of another road has nothing to do with the condition of the track of the appellant. It is a matter foreign, and could not be considered as shedding any light upon the negligence of appellant or its care and caution in keeping its track in *620 good condition and repair, nor would such testimony be useful in explaining the conduct of the appellee. It was further attempted to be proved by the witness Campbell that it was a well-settled rule among railroad men that a brakeman must look where he goes to couple cars. This testimony was irrelevant. It is a question of fact for the jury to determine, with the rulings of law bearing upon the question, the duty of a brakeman when engaged in the service of his master, and a witness has not the right to determine this fact for the jury. The witness can testify as to rules promulgated by the company for the guidance of the bralcemen, if he knows them, but the character of evidence offered was not to this effect. It was to the point that among railroad men it was well settled as a rule that a brakeman must look where he goes, otherwise he is guilty of negligence. This character of testimony was not admissible. The testimony of the plaintiff complained of in the tenth assignment of error was admissible, and is justified by the ruling made in Railway v. Somers, 71 Texas, 700. The plaintiff, after having testified in response to questions asked by appellant to the effect that he had on rubber boots at the time of his injury, and that it was muddy and slippery where he was injured, was asked the question by his counsel if the muddy boots caused him to fall. He answered “No.” This testimony Was objected to by the appellant upon the ground that it was a question of fact for the jury to determine what caused the appellee to fall. As to what caused the appellee to fall is a question of fact, and if the appellee knew that his fall was attributable to a certain fact, or if he knew that his fall was not occasioned by a certain condition of things, he could so state. It was testimony concerning a fact, and one which evidently he was more familiar with than any one else, and if he knew the fact there could be no serious objection to his testifying to it. The objections to the remarks of counsel complained of in the first, second, third and fourth assignments of error should not cause a reversal of the case. There is no complaint here that the verdict of the jury is excessive, nor does it appear that they were influenced by passion or prejudice aroused by these remarks in finding a verdict. But a serin is objection exists in the manner in which these points were preserved in the trial below. No objection was made to these remarks at the time they were delivered in the trial court, nor was the court then requested that counsel should be admonished, nor was any exception taken to these remarks at that time, but some time after the trial a bill of exception was presented objecting to the language complained of. Although appellant may have labored under some embarrassment in calling the attention of the trial court to these remarks at the time they were made, it is believed that the proper rule to govern in matters of this kind, in order to preserve the point, is to make the exception at the time the remarks are made, and thereby call the court’s attention to the impropriety of the language used. This was not done in this case. *621 We find that there was no reversible error shown in the record, and therefore affirm the judgment. Affirmed. Writ of error refused.