Opinion
No. 3867.
June 25, 1930. Rehearing Denied July 3, 1930.
Appeal from District Court, Hunt County; Grover Sellers, Judge.
Suit by W. H. Hempkins against the Missouri-Kansas-Texas Railroad Company of Texas. From an adverse judgment, the defendant appeals.
Affirmed.
The suit was by the appellee for damages for personal injuries alleged to have been sustained by him while, as section foreman, he was engaged in repairing the railway track at a public street crossing in the city of Greenville. The section crew were replacing rails in the track. The plaintiff was assisting in lifting the rails to their place in the track. The rails were 99 feet long, consisting of three rails each 33 feet long welded together. The weight of the 99-foot rail was about 3,000 pounds. The negligence alleged was, namely: (1) "The plaintiff was furnished the force of about nine men to work under and assist him in the performance of said labor, and while they and the plaintiff were moving said rail, lifting, pulling and dragging one of the rails, the rail was suddenly and without warning or knowledge of plaintiff negligently permitted by the employees, or some of them, to pull down and jerk, causing a sudden, unexpected and heavy force to be added to the weight that plaintiff was lifting, straining, jerking and injuring plaintiff," etc., and (2) "defendant negligently failed to furnish a sufficient force to do the work and to handle the rails aforesaid, and negligently furnished an insufficient force and failed to furnish a sufficient number of men to properly do the work without damage to those engaged in it." The company pleaded general denial, and specially that (1) the plaintiff assumed the risk of injury in knowingly doing the work with an insufficient force of men; (2) plaintiff's injury was the result of the risk ordinarily incident to the work he was doing; (3) plaintiff's injury was due to his own negligence in the manner in which he directed and attempted to do the work; (4) the company was an interstate carrier engaged in interstate commerce, and plaintiff was injured while at work upon instrumentalities being used in interstate commerce in which the company was engaged.
The injury occurred under the following circumstances, as the plaintiff describes it:
"I was injured in Greenville September 20, 1927. At that time I was thirty years of age. My duty as section foreman was keeping up and maintaining the yards and city yards of the railroad company. I was engaged on that date in putting in 99-foot rail in the railway track on Lee Street at the public street crossing near the depot. There were two rails to be put in that crossing. The rails were 33-foot rails welded together, weighing somewhere around three thousand pounds. In addition to the rails being welded together there were angle-bars under it, with two bolts through the ends. The angle-bars weighed about 15 or maybe 25 pounds. We blocked the crossing in order to put down the rails. Mr. Moore, the road master, directed me to do that work. When Mr. Moore ordered me to put in those rails I told him, `I haven't got enough force to handle those rails.' He said, `You can get Cobble's and Todd's gangs.' I said, `That won't be enough men.' He said, `That's all the men we can get at the present time.' I had three men, and Todd and Cobble each had three men. He told me that I should make a hand. The rails before we began to lay them in the track were lying about eighteen feet south of the flagman's shanty and lengthwise with the track we were repairing. The first thing we did was to unbolt the old rails in the track and get them out. The next thing we did we made the ground solid and put in a few cross-ties. We then put in one of those long rails on the side-track. We got some bars and ran through the end of the rail in the holes where the angle-bars are supposed to be, and some of us got hold of the bars and some of us straddled the rail, pulling with our hands. There were four of us ahold of the bars, and the rest were straddle of it and lifting. There were ten of us, including me, handling that rail. We raised the rail up and got some ties under it. We then lifted it in place in the track. * * * When we came back after dinner we got the other long rail and worked it just like we had done the other. There were four of us at the end which we were raising up. We had eighteen or twenty inches up off the ground when, some way or another, the negro on the other side of the bar from me holding with us went to get a new hold and it threw the weight on my side of the bar and I got hurt — something seemed to tear loose in my side. * * * A sudden let down or raise threw the weight down on my side. * * * When I was hurt I had a bar in under the rail I was lifting, and in some way a sudden let down or raise threw the weight in on my side. I had hold of the end of the bar and a negro was there with me and there were two more negroes on the other side of the bar. The negroes on the other side of the bar were taller then we were, and they let down to get a new hold and jerked up quick. Somehow in letting down to get a new hold it threw the weight over on my side. * * * There was a let down that caused me to get this injury or hurt for which I am suing."
The evidence concerning the extent of the injury is conflicting. The company was proven to be a carrier of interstate commerce running trains from Greenville, Tex., to Shreveport, La.
The case was submitted to a jury on a general charge, and the verdict was in favor of the plaintiff. The court submitted to the jury for finding in the alternative upon the alleged negligence or not of (1) furnishing an insufficient number of men to do the work of moving and placing the rails, and (2) of the fellow servants in suddenly letting down and in pulling up or jerking up the rail in a manner to unexpectedly cause heavy weight to be added to the weight that the plaintiff was lifting. The charge further submitted to the jury for finding (1) of whether or not the plaintiff assumed the risk of working with an insufficient force of men; (2) of whether or not plaintiff received any injury; (3) of whether or not the plaintiff negligently failed to procure proper medical treatment and attention for the injury; and (4) of damages sustained. The defendant entered no objections or exceptions to the charge.
The evidence warrants the finding of the jury as to the second ground of alleged negligence and as to the amount of the damages awarded, and in deference to the verdict we here adopt such findings of fact. The evidence is undisputed in these respects, namely: (1) That the appellant company was engaged in interstate commerce; (2) that the track being repaired was an instrumentality of interstate commerce; (3) that the plaintiff at the time of the injury was at work in interstate commerce; (4) that the plaintiff knowingly worked with an insufficient force of men to do the work of lifting and placing the rail, and that he thereby assumed the risk of injury.
B. M. McMahan, of Greenville, Spell, Naman Howell, of Waco, Chas. C. Huff, of Dallas, and Hilton E. Howell, of Waco, for appellant.
Bowman Bowman, of Greenville, and Randell Randell, of Sherman, for appellee.
The appellant predicates error upon the refusal of the court to give a peremptory instruction to the jury to find a verdict in its favor. We think, as urged by the appellant, that the undisputed evidence shows the appellee was an experienced section foreman familiar with the character of work being done, and knew that the force of men assigned to him to do the work in hand was insufficient for the purpose without danger. We think it was further conclusively established that the railroad company was engaged in interstate commerce, and that the track being repaired was used in interstate commerce. In the light of these precise facts, as stated, were they the only facts in the case the appeal would be governed by the common-law rule of assumed risk, as applied under the Federal Employers' Liability Act (45 USCA §§ 51-59), since the case of Pedersen v. D., L. W. R. Co., 229 U.S. 146, 33 S.Ct. 648, 57 L.Ed. 1125, would apply. But there was another and distinct ground of negligence pleaded and relied upon, the negligence of a fellow servant in the manner of his handling the rail, which negligence proximately caused the injury to appellee. There was evidence sufficient to carry that issue of negligence vel non to the jury, and therefore, because of that fact, the peremptory instruction was properly refused by the court.
The appellant presents and urges misconduct of the jury as a ground for a new trial. Evidence was heard by the trial court, and the findings thereon, as made by him upon conflicting evidence, must be regarded as final. Houston T. C. Ry. Co. v. Gray, 105 Tex. 42, 143 S.W. 606; Bradley v. Ry. Co. (Tex.Com.App.) 1 S.W.2d 861.
We have considered all the assignments of error, and conclude that each of them should be overruled.
The judgment is affirmed.