Texas N. O. R. Co. v. Cammack , 280 S.W. 864 ( 1926 )

DEWY, J.

(after stating the facts as above).

The point first presented on appeal by appellant is to the effect that the evidence speaks unequivocally of the lack of any negligence in the operation of the engine upon which to found a legal liability to appellee for his injuries. It affirmatively and conclusively appears that the appellee was going from the caboose, over the cars, to the front end of the train in order to discharge the duties of head brakeman upon the arrival of the train at Jacksonville, which was a short distance away. The engineer had actual knowledge of appellee’s riding in the caboose, and further knew, as he said, that — ■

“Cammack would have to go over the cars to get from the caboose to the head end for the purpose of uncoupling at Jacksonville. I knew he would come over the train to be in his place at the head of the train.”

And it is an admitted fact that appellee fell between the moving cars as he .was attempting to cross from one car to another. What caused him to fall? It can scarcely be doubted from the evidence that he was caused to fall by “a jerk” of the train at the very time he was attempting to cross over from the car he was on to the car immediately ahead. The “jerk” coming at the time it did prevented the appellee, as he says, from “getting my handhold on the top of the car, as I undertook to make it, because I didn’t have time to make it, as the jerk of the train came before I had time to make it and get hold of it.” And the circumstances tend to corroborate the statement made by the appellee. At that place and time a “jerk” of the train occurred, as shown by all the operatives of -the train. At the time the heavily loaded train was going upgrade, the rails were wet, and the wheels of the engine suddenly began to slip, and the engineer started the engine forward with a quick motion. The “jerk” so caused was, according to the evidence, either the usual and ordinary pull of the engine occurring in the operation of the train under the circumstances, such as might reasonably have been anticipated by the train crew, or the pull of the engine caused by its being operated forward suddenly with quick, sharp force, not commonly occurring in the usual and ordinary operation of the train under the circumstances. Some of the witnesses, including appel-lee, described the “jerk” as “unusually hard,” “a big jerk,” and “more than an ordinary jerk.” Appellee testified:

“That jerk of the train was an unusually hard jerk. But for that unusual and hard jerk there was no occasion for me to fall.”

The brakeman testified that the jerk “was a severe jerk; it was a violent jerk.” The conductor testified that — ■

The jerk “was a pretty big jerk, a pretty good jolt — a little bit more than an ordinary, jerk on account of not being used to big engines. It was more than we had been accustomed to.”

On the other hand, the engineer and other witnesses testified to the effect that the jerk “was but the usual and ordinary jerk occasioned by an engine slipping under like conditions.” And the engineer further stated: “I sanded the rails before it (the engine) slipped, and I continued to sand it.” There is evidence, however, tending to show a failure of the engineer to sand the rails before the engine wheels began to slip. Therefore, we conclude, after timely deliberations, that in the circumstances, it could not reasonably be said, as a matter of law, there is no evidence justifying the submission of the issue of negligence vel non to the jury. Eor if the fact be true that the appellee was immediately caused to fall between the cars by a pull of the engine with quick, sharp force not in the usual and necessary operation of the train under the circumstances, or if the fact be true that the pull or jerk of the engine and cars could reasonably have been averted or lessened by the customary and timely application of sand to the rails by the operative of the engine, then there is ample room in the evidence to authorize the further finding of negligent operation of the train. The jury made the special findings that the appellee was caused to fall between the cars by a sudden, quick pull of the engine and cars, out of the usual and ordinary operation of the train, and that the engineer failed to promptly and timely apply sand. And there is evidence sufficient to justify their further findings that the acts mentioned constituted negligence proximately causing appellee’s injury. Therefore the several propositions pertinent to the point are overruled.

It is next contended that there was failure to submit separately and distinctly the different issues of fact constituting contributory negligence and assumed risk. The court, in special issue No. 8, specially authorized a finding by the jury as to whether or not “the method or the manner of the movement made by him while passing from one car to the other” constituted contributory negligence on the part of the appellee. That issue was phrased in substantially the words of the appellant’s' answer. “Contributory negligence” was specially and correctly defined in the charge. The only issue of contributory negligence raised, even remotely so, by the evidence, was that submitted by the court, in the method adopted or in the manner of the movement made by the appellee while attempting to pass from one ear to another at the time of his fall and injury. The appellee undertook to go from the one car to the ear ahead in the way and manner usually and customarily done by brakemen, and there is no affirmative evidence nor circumstances going to show to the contrary The court left to the jury the decision of whether or not the appellee assumed the risk of the “negligence”- of his coemployees operating the engine. The court specially informed the jury that the appellee assumed the risk of “negligence known to him, or when such negligence is so plainly discoverable as he must have known thereof.” There can scarcely be a doubt from the evidence that the appellee fell instantly between the cars when the negligent jerk relied on occurred. He had no opportunity to know of the particular negligent act until it occurred. The rule is general and invariable that an employee does not • assume the. risk of any negligent act of a coemployee until he becomes aware of it, or unless the negligent act is so plainly observable before injury results that he must be presumed to have known it. And even if the appellant were engaged in interstate commerce, the court correctly submitted-the issue of assumed risk, if it could be said at all that sucb issue was* raised by the evidence. Therefore all tbe propositions pertinent to these points are overruled.

We have carefully considered all the propositions relating to errors claimed to have been made during the trial, and we conclude that each of them should be overruled as not constituting reversible error.

The last question, pertaining to the amount of the verdict, we have carried under consideration for some time. The amount is quite large, it is time, but the injury and loss to appellee is grave and serious too. The appellee was SO years old, sound and healthy, and experienced in railroad work. He was in line of promotion and had served as extra conductor when needed. He was earning about $2,500 a year in his line of work. As the result of his injuries, he was in the hospital for many months and has been operated on twice since the injury as a result of the injury. His present bodily condition renders him practically helpless, and permanently so. One leg is gone and the remaining foot mashed; the head is injured; the right hand is mashed, with three fingers gone. It is unnecessary to further detail the injuries. It is sufficient that the grevious injuries to the body are for the duration of the appellee’s life, and the mental anguish of such condition will continue with him during his lifetime. The law fixes the compensation, not only of money loss, presently and because of diminished capacity to labor in the future, but of mental anguish and physical suffering, presently and in the future. ■ In view of this rule of damages and the entire absence of any circumstances tending to show improper action on the part of the jury rendering the verdict, this court does not feel justified in .lessening the amount of compensation determined by the jury.

We think the judgment should be affirmed,' and it is accordingly so ordered.