Wagnon v. Houston & Texas Central Railway Co. , 40 Tex. Civ. App. 467 ( 1905 )

GILL, Chief Justice.

This suit was instituted by W. B. Wagnon as guardian of the persons and estates of John, Cleve, Maggie, Pearl and Buth Werner, minors, to recover damages for the death.of their father, Andy Werner, who was alleged to have met his death through the negligence of the Houston & Texas Central Bailroad Company, while in its service and employment.

The defendant interposed the pleas of contributory negligence, assumed risk, and that the accident was due to the negligence of a fellow servant. The court, after hearing the evidence, instructed the jury to return a verdict for defendant, which was done, and judgment followed accordingly. Plaintiff has appealed, and contends here that under the facts the cause should have been submitted to the jury.

The deceased, Andy Werner, was in the employ of the Houston & Texas Central Bailroad Company as foreman of a switching crew in the Hempstead yards. On the morning of January 7, 1897, he was in the active discharge of his duties as foreman, and working under him and subject to his orders and direction were two switchmen and the engineer and fireman in charge of the switch engine. Through him and under his direction the cars composing freight trains which came into Hempstead over defendant’s lines were disbursed and distributed among the various tracks at that point, or were embodied in other trains destined from that to other points.

On the occasion in question he and his crew were engaged in making up a local freight train which was to go out over the Austin branch of defendant’s road, and, as made up, the cars destined to go out in that train were placed on what was known as Ho. 4 track. The cars intended to compose the train were mixed with other cars on the several tracks at that point, so that in order to get them together it was necessary to move and handle other cars also. Among the cars wanted were some cars of ties. The engine with several cars were backed, • at Werner’s order, onto track Ho. 2 and coupled onto a car of ties and thence pulled out onto tracks connecting with track Ho. 4 for the purpose of kicking the car of ties onto track Ho. 4. There were connected with the engine three box cars and a car of heavy bridge timbers called stringers, and a car of ties. Werner cut the car of ties loose and had it kicked onto track Ho. 4, but it stopped too short to clear the next track. He then threw the switch for track Ho. 2 and signalled the engineer to kick the car of bridge timbers onto track Ho. 2, where it was to be left, as it was not to form a part of the train. When he gave the signal he mounted the car of bridge timbers, and the engine was backed at a speed of about seven miles an hour, when the car of bridge timbers, in going toward track Ho. 2, collided with the standing car of ties on the approach to track Ho. 4. The collision caused the bridge timbers to slide onto Werner and injure him so that he died. That the car of ties had not gone far enough to clear the next track was patent, and should have been known to Werner.

Plaintiff claims that deceased’s death was due to the fact that the bridge timbers were negligently and improperly loaded, in that they had no cleats across the top to hold the timbers in place. Defendant claims that even if this is true the accident would not have happened had the cars been prudently handled, and that the negligence of deceased in leaving the car of ties at an unsafe point and carelessly signaling the engineer to back the train in on the next track contributed to cause the injury.

Appellants’ assignment of error is not presented and developed by appropriate propositions in such a way as to require our notice, but as we have had to find the facts in order to properly dispose of the appeal, we have necessarily learned whether there was any merit in the point sought to be presented. We think it very clear that the undisputed facts acquit the- company of liability, the contributory negligence of deceased and its causal connection with the accident being established beyond question.

The judgment of the trial court is therefore affirmed.

Affirmed.

Writ of error refused.