Texarkana & Ft. S. Ry. Co. v. La Velle , 247 S.W. 617 ( 1922 )

The facts proven, substantially stated above, are to be considered in passing upon the point made on appeal that the evidence fails to show negligence as pleaded by appellee. It is affirmatively shown that five of the six skid poles used on the skidway were pushed back on the skidway with "three or four logs laying across the ends," and that the remaining skid poles projected beyond the end of the nearby skidway and reached so close to the spur track as to injure the foot of the appellee, a switchman, while he was riding on a passing flat car loaded with logs for delivery at the skidway. This is the situation described by the witnesses as existing at "the time of the injury." But the situation of the skid poles at any time prior to the very "time of the injury" is not shown by any evidence. There is no evidence that any employee of the railroad company ever handled or used the skid poles, and there is evidence, as testified by appellee, that none of the skid poles had been left in close proximity to the spur track at any time for a year before by the employees of the Veneer Works.

Whether the spur track was owned by the railway company or the Veneer Works is not made clear by the evidence. Yet it is clear from all the evidence that the railway company used the spur track for its advantage. In so using the spur track the railway company owed the duty to the operatives of the train "to use ordinary care," as laid down in Railway Co. v. Hohn, 1 Tex. Civ. App. 36, 21 S.W. 942 —

"to discover within reasonable time, and remove, any obstruction of the track dangerous to the employees, however it may have come there, whether by the act of the servant or by that of a stranger or by accident."

Provided further, as stated in Railway Co v. Jones, 103 Tex. 187,125 S.W. 309:

"In order to constitute it [negligent failure to use ordinary care], the bolt must have been put on the track by some employee, or its presence there must have been known to some of them before the accident, or must have continued long enough to justify the inference that the failure to know it was due to a want of the proper care."

Under these rules, then, it devolved upon the appellee to show, either by direct or circumstantial evidence, that (1) the skid pole was in its position "by the act of its (the railway company) employees," or (2) its presence and proximity to the track was known to some proper employee of the railway company before the injury, or (3) its close proximity to the spur track "must have continued long enough to justify the inference that the failure to know it was due to a want of the proper care." There is failure, we conclude, in the sufficiency of evidence in the record to meet the required burden of proof. For the Veneer Works, a private manufacturing company, and not the railway company, it is admitted, owned, controlled, and exclusively used the skidway and the skid poles. From this admitted fact would, in the absence, as here, of further evidence, arise the presumption or inference either that the employees of the Veneer Works, or some other person, rather than the employees of the railway company, put the skid pole where it was and allowed it to be there. And especially so since there is no evidence even tending to show that any employee of the railway company ever did handle or use the skid poles, in this instance placed the skid pole where it was. While there is evidence to the effect that the day switching crew, or the shift preceding the shift that appellee worked on, usually pulled the empty cars, whenever there were empty cars there, from the spur track, still the evidence does not show that on that day any empty cars were withdrawn from the spur track. On the other hand, it affirmatively appears that there were no cars at all on the spur track at 4 o'clock of the day of injury and until the moment of the injury. Consequently any inference that cars being removed from the spur track might have pulled the skid pole out cannot be properly indulged. It would be strange that only one skid pole was pulled out and the other five left there "with logs laying across the ends." In these circumstances, unexplained by further evidence, it would be mere conjecture, and not based on a reasonable inference arising from a given situation, to say that an employee of the railway company caused the skid pole to be in close proximity to the car, or knew of its presence there before 4 o'clock of that day, or that the skid pole was in that position from before 4 o'clock until the injury at 10 o'clock. And there is no evidence that the skid pole was projecting out before "the time of injury."

After carefully considering all the evidence, it is firmly believed that it is too weak to predicate the allegations of the petition upon, and that the judgment should be reversed and the cause remanded, which is accordingly ordered.