Chicago, Rock Island & Pacific Railway Co. v. Thompson , 41 Tex. Civ. App. 459 ( 1906 )

Appellee, in trying to uncouple a freight car in a slowly moving train, while between the cars, got one of his feet caught in a defective frog of a switch, and being unable to extricate it in time, the foot was so crushed by a wheel as to require its amputation. In this suit instituted to recover damages for the injury stated on the ground of negligence in maintaining the frog, appellee recovered a judgment for $3,500; and the questions assigned as error before us on appeal are substantially: 1st. Whether there was error in excluding proof that appellee contracted with appellant at the time of entering its employment as a brakeman, to give notice of any claim for damages for any injury he might receive within 30 days after its occurrence, and that a failure to give such notice should be a bar to the institution of any suit on account of such injury. 2d. Whether the evidence supports the verdict in appellee's favor on the issue of his alleged contributory negligence in going between the cars to uncouple them.

We conclude that both questions must be decided adversely to appellant's contention. The contract offered was executed at Chickasha, Indian Territory, and contained a stipulation as indicated, but it is well settled in Texas, regardless of the law of the place of the contract, that such stipulations pertain to the remedy and will be enforced by our courts only when shown to be reasonable and not violative of Revised Statutes, article 3379, which provides that a stipulation for notice of the kind in question for a less period than ninety days shall be void. See Armstrong v. Railway Co., 92 Tex. 121 [92 Tex. 121]; Western U. Tel. Co. v. Lovely, 52 S.W. Rep., 563; Missouri, K. T. Ry. Co. v. Commission Co., 87 S.W. Rep., 871; Gulf, C. S. F. Ry. Co. v. Eddins, 7 Texas Civ. App. 123[7 Tex. Civ. App. 123]; Burgess v. Western U. Tel. Co.,92 Tex. 128.

On the issue of contributory negligence the proof shows that the cars in question had been provided with patent uncouplers, but that because of an inability to make the required uncoupling by means of the patented appliances appellee stepped upon the track between the cars and endeavored to accomplish the purpose of withdrawing the coupling pin with his hand. In doing so appellee violated a printed rule of the company and he could have gone over or around the train and have uncoupled the car by means of an uncoupling lever on the other side, or he could have caused the train to stop and have then uncoupled it. But there was abundant evidence tending to show that brakemen were subject to the control and direction of the freight conductors, and that the rule forbidding brakemen to go between cars to uncouple them was habitually violated, within the knowledge, if not by requirement of such conductors. The train was moving slowly, the uncoupling attempted in a manner that appellee's evidence tends to show was usual and even required under similar circumstances, and we think the jury's finding that appellee was without contributory negligence in so doing, is conclusive here. The mere violation of the rule adverted to, does not make it otherwise. This at best was but a circumstance to be considered by the jury together with all other relevant evidence in the determination of the issue. (Texas Cen. Ry. Co. v. Bender, 75 S.W. Rep., 561; Gulf, C. S. F. Ry. Co. v. Cornell, 69 S.W. Rep., 981; Missouri, K. T. Ry. Co. v. Mayfield, 68 S.W. Rep., 809.)

In other particulars the verdict and judgment are not assailed, and hence we find that the evidence supports the material allegations of appellee's petition, and order that the judgment be affirmed.

Affirmed.

Writ of error granted.

Affirmed.

Reversed and remanded.