Casey v. Texarkana & Ft. S. Ry. Co. , 1912 Tex. App. LEXIS 1047 ( 1912 )

(after stating the facts as above). [1, 2] Before determining the appeal on its merits, we will dispose of the motion made by appellee to dismiss it, on the ground, supported by the record, that it is being prosecuted without an appeal bond. So far as it should be construed to be an Appeal by Mrs. Casey in her capacity as an individual, the motion should be sustained, for in that capacity she is not entitled, without first making and filing a bond, to prosecute an appeal; but, so far as it is an appeal by her as administratrix, the motion should be overruled, for in that capacity she is entitled, without making a bond, to prosecute an appeal. Sayles' Stat. art. 1408. From the allegations in the petition and recitals in the judgment, set out in the statement, we think it appears that she prosecuted the suit as administratrix and as such is prosecuting the appeal. It may be that she had not executed a bond as temporary administratrix, and therefore had not so qualified as to be authorized to act as such in the prosecution of the suit. Whether she had executed a bond or not was a question of fact to be determined in the first instance by the court below. It was not determined there. In the attitude the matter is presented to us, if the question should be said ever to have been made, as it must have been, if at all, by a plea verified by affidavit (Sayles' Stat. art. 1265; Graham v. McCarty,69 Tex. 323, 7 S.W. 342), we think it should be treated here as having been waived by the failure of appellee to have it determined by the court below and to assign error on it (Grand Lodge v. Stumpf,24 Tex. Civ. App. 309, 58 S.W. 840; Blum v. Strong, 71 Tex. 329,6 S.W. 167; Railway Co. v. Harlan, 62 S.W. 972).

The motion will be overruled so far as it applies to the appeal of Mrs. Casey as administratrix, and will be sustained so far as it applies to an appeal by her in her individual capacity.

Referring now to the merits of the appeal, we are of the opinion that the court below erred in peremptorily instructing the jury to find for appellee. The main track in appellee's yards in Texarkana, Tex., extended north and south. A short distance east of and parallel with that track was another, known as "track No. 1," and a short distance west of and parallel with said main track was another, known as "long house track." Both No. 1 and long house tracks were connected by switches to the main track. Between 5 and 6 o'clock, and when it was still dark, on the morning of December 23, 1908, freight train No. 74, from points in Louisiana, destined to points in Arkansas, reached appellee's said yards and was placed on track No. 1. Immediately thereafterwards Casey and an assistant began to inspect the cars constituting that train. On completing the inspection thereof Casey, having in the meantime been informed by Iiams, foreman of the switching crew, that 12 empty coal cars then on long house track were to be carried on as a part of train No. 74, soon to proceed north, in the discharge of his duty went to and commenced inspecting said coal cars. While he was engaged in this work, the switching crew cut the train on track No. 1, carrying 16 cars forming a part of same north on the main track, "kicked" two of the number south on said main track, and then pushed the other fourteen onto long house track, propelling them against the coal cars for the purpose of coupling thereto. The cars failed to couple when the attempt was first made. As a result of the collision, the coal cars rolled south about 15 feet on long house track, where they stopped. The fourteen cars out of train No. 74 were then again shoved south, against the coal cars, colliding with and pushing the latter several car lengths further south. Between the time when the collision occurred between the coal cars and the cars out of train No. 74, in the effort first made to effect the coupling, and the time when the second collision occurred, Casey, in the discharge of his duty, had gone between two of the coal cars. As a result of the second collision he was hit by the cars, and knocked down, and suffered the injuries which caused his death. Negligence on the part of Casey contributing to the injury he suffered not being a bar to a right in his administratrix to recover damages for his death, the questions controlling on the issue as to liability on the part of appellee were: (1) Did the testimony make a question for the jury as to whether the switching crew were guilty of negligence or not in shoving the cars out of train No. 74 against the coal cars in the second attempt to make a coupling, without first warning Casey of their intention to do so? (2) Did the testimony make a question for the jury as to whether Casey had assumed the risk of such conduct on the part of the switching crew or not? We think both questions should be answered in the affirmative. There was testimony showing that appellee had promulgated a rule requiring car inspectors, if they did not wish cars they were inspecting to be moved while they were inspecting same, to place blue lights at the ends thereof, and prohibiting other employés from removing lights so placed and from coupling to or moving cars so protected. There also was evidence from which a jury might have found that the rule was not construed by appellee's employés as applying to cars designated, as the coal cars were, as "pick ups," meaning thereby, it seems, cars temporarily placed on a side track to be carried out by incoming trains, and that it was never observed as to such cars. There was testimony authorizing a jury to find that the switching crew knew, or should have known, that Casey was engaged in inspecting the coal cars at the time they pushed the other cars against them, and authorizing a finding that they knew, or should have known, that in inspecting the coal cars Casey might go between them. There was testimony which would have authorized a finding by the jury that it was not customary for the switching crew to propel other cars against cars which they knew to be undergoing inspection. Sturdevant, a member of the switching crew, testified: "As to our custom to couple onto cars in that yard while an inspector was doing the work of inspection, we do not do it if we know the inspector is around it. * * * I never coupled into any cars that had to be inspected to become part of a train, while inspectors were performing the work of inspection. It wasn't customary to my knowledge. * * * It is customary to wait until the inspector had finished the work of inspection when we were notified by the inspector, or when we knew he was doing the work of inspection. I never knew of a blue light on a car unless an inspector was doing some work on it." While the testimony of Iiams, foreman of the switching crew, and of Bently, a member of that crew, indicated that Casey was advised by Iiams, before he (Casey) began the inspection of the coal cars, that cars out of train No. 74 would be pushed onto long house track against the coal cars, and that the latter would be shoved south thereon fourteen car lengths, Sturdevant testified, with reference to what Iiams said to Casey: "I heard Iiams tell him (Casey) that we were going to throw two bad orders — going to pull those sixteen out and throw two bad orders on the main line and shove the balance of the cut in on top of the coal cars on long house. I can't say whether he said anything about doubling over." From this testimony we think a jury might have found that the switching crew, having shoved "the balance of the cut in on top of the coal cars," should have anticipated that Casey might believe, as his declaration made after he received the injuries, testified to by Bently, that he "thought the boys were through," indicated he did, that the coal cars would not be further moved while he was inspecting them. If a jury might have found that reasonably prudent persons engaged in the work the switching crew were engaged in should have anticipated that Casey might so conclude and go between the coal cars as he did, we see no reason why they might not have further found that, in making the second attempt to couple the cars, the switching crew were guilty of negligence. And on the same testimony we see no reason why a jury might not have found that the risk resulting from their negligence was not assumed by Casey. We think the testimony presented issues for determination by the jury, and that the court erred in refusing to submit the case to them. Therefore the judgment is reversed, and the cause is remanded for a new trial