Southern Pac. Co. v. Henderson

HIGGINS, J. Henderson brought this suit against appellant to recover damages arising out of personal injuries. From a verdict and judgment in his favor, the defendant appeals. Henderson was an employé of defendant, serving as a switchman in its yards in Los Angeles, Cal. On January 20, 1917, he was working in that portion of the yards known as “the Cornfield.” The crew of which he was a member had gone there to get some cars. He was standing near a switch which he was to throw. While so standing another string of cars unexpectedly came down the High Line. He was struck thereby and sustained severe injuries. There is evidence that this string of cars was a part of a train of cars that was being switched from the Midway yard to the Cornfield.- The train was being pushed, and whilst in motion a coupling became disconnected. The disconnected cars. *562 moving by momentum, struck Henderson and inflicted bis injuries. As grounds of .negligence, it was alleged tbat tbe uncoupling of tbe cars was due to defective coupling appliances, and tbat tbe car which struck plaintiff was not equipped with efficient band brakes. There was one other ground of negligence alleged but was not submitted to tbe jury. Defendant pleaded tbat the courts of Texas bad no jurisdiction of tbe cause of action. It was pleaded that the injuries were sustained in California and while Henderson was engaged in intrastate commerce, tbat California bad a law known as the Workmen’s Compensation Insurance and Safety Act (St. 1913, p. 279), and tbat under this iaw, where an employé was injured by a railroad company in tbe discharge of duties not connected with interstate commerce, tbe Industrial Accident Board, created by said iaw, bad exclusive jurisdiction of all claims arising out of such injury. Upon trial, the court gave a peremptory instruction to find against defendant upon its jurisdictional plea, and submitted the case upon tbe two grounds of negligence charged as above indicated and tbe defensive issues presented by defendant. [1] Error is assigned to tbe peremptory instruction to find against tbe plea to the jurisdiction. Tbe undisputed evidence shows tbat defendant was a common carrier and engaged in interstate commerce, and tbat tbe Los Angeles yards were used in making up and breaking up of trains handling interstate commerce. Tbe plaintiff alleged and proved a violation of tbe federal Safety Appliance Act (U. S. Comp. St. § 8605 et seq.) as tbe proximate cause of bis injury. This was tbe only ground of negligence submitted in tbe charge. In this condition of tbe record the court properly gave tbe instruction complained of. Under tbe pleading, evidence, and charge, plaintiff’s right of recovery was bottomed upon the Safety Appliance Act, and tbe California statute as to bis right and remedy was without application. Railway Co. v. Sprole, 202 S. W. 985; Railway Co. v. Rigsby, 241 U. S. 33, 36 Sup. Ct. 482, 60 L. Ed. 874; Railway Co. v. Commission, 236 U. S. 439, 35 Sup. Ct. 304, 59 L. Ed. 665; Railway Co. v. Layton, 243 U. S. 617, 37 Sup. Ct. 456, 61 L. Ed. 931. [2] Under assignments 6, 7, 8, and 9, it is complained tbat tbe charge should not have submitted any issue as to defective couplers and band brakes, because there is no evidence that they were defective, and for the further reason that, if such defects existed, tbe same is not shown to have been the proximate cause of tbe injury. There is ample evidence to show defects in both coupling appliances and brakes. There is no use to quote it. We simply reier to the testimony of tbe witnesses Shoemaker and Bedor. As to proximate cause tbe testimony shows tbat tbe string of cars which struck 'Henderson became uncoupled by reason of the defective coupling appliance, and, having-become uncoupled, ran down tbe High Line, where they were not intended to go, and struck plaintiff. As to the hand brake of tbe front car, it was shown to be out of repair, so tbat it could not be set. Tbe jury was warranted in finding tbat tbe string would have been stopped before it struck Henderson, if tbe brake could have been set by the men on tbe cars. It seems very clear tbat whether or not the defects complained of were proximate causes was raised by the evidence, and questions for tbe jury. [3] Tbe remaining assignments complain of rulings upon evidence. None of them present reversible'error. In view of their number, tbe reason for overruling same will be but briefly indicated. Tbe materiality of tbe letter which tbe witness Shoemaker failed to attach to bis deposition is not apparent. He was asked if be had received any letters from plaintiff or his attorney. He replied tbat be had received a letter from tbe attorney asking him to answer questions, and this letter was attached; that he received one letter from plaintiff, asking if be would answer questions. Tbe materiality of a letter of this nature is not apparent, and the failure to comply with a request to attach it furnished no ground for suppressing the deposition. It was evidently a letter inquiring of the witness (who lived in Chicago) if he would testify. As to those complaining that certain interrogatories were leading and suggestive of the answer desired, the questions are not regarded as subject to the objection made. Railway Co. v. Jamison, 12 Tex. Civ. App. 689, 34 S. W. 674; Long v. Steiger, 8 Tex. 466. [4] The witness Bedor was present on the trial by procurement of defendant, having been brought from California. He was sworn and placed under the rule as one of defendant’s witnesses. Under the circumstances it was not an abuse of discretion on the part of the trial court in permitting plaintiff to introduce the deposition of the witness theretofore taken, instead of requiring that he be placed on the stand. Holt v. Guerguin, 106 Tex. 185, 163 S. W. 10, 50 L. R. A. (N. S.) 1136; Railway Co. v. Renken, 15 Tex. Civ. App. 229, 38 S. W. 830. [5] As to the twentieth assignment, we know of no rule which would require the plaintiff to use a transcript of the oral testimony given by the witness Bedor upon a former trial, instead of his written deposition taken in the manner prescribed by law. [6] As to assignments 21 to 24, the proper predicate had not been laid to impeach the witness, and therefore the transcript of his *563 evidence on a former trial was not admissible. The witness was present- at the trial by procurement of defendant. Affirmed. Footnotes [1] @=»For other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes