Texas & P. Ry. Co. v. Sherer , 1916 Tex. App. LEXIS 157 ( 1916 )

F. G. Sherer, an employé of the Texas Pacific Railway Company, and while engaged as a switchman in its yards in the city of Ft. Worth, ascended to the top of one of a string of freight cars, which were in motion at the time, for the purpose of setting the brakes in order to control the movement of the cars, which were then upon a switch track. After setting the brakes, he caught hold of the handhold or grabiron at the top of the ladder, which extended down by the side of the car near one end, for the purpose of descending to the ground. According to his testimony, the handhold gave way and caused him to fall. For alleged injuries resulting from the fall he instituted this suit against the company to recover damages in the sum of $30,000, and from a judgment in his favor for the sum of $11,250, the defendant has appealed.

The petition contained the following allegations:

"Fourth. That said handhold or grabiron was insufficient, defective, loose, or insecure, and directly caused plaintiff's injuries by being in such defective condition, and that it was dark, and the defective condition of said handhold was unknown to plaintiff.

"Fifth. That the statutes of this state required defendant to provide the cars in use on its road and tracks with sufficient and secure grabirons and handholds, and made it unlawful for defendant to use said car without sufficient and secure handholds and grabirons, and that in so using said car defendant was violating the laws of this state.

"Sixth. That under the Acts of Congress of the United States it was unlawful for defendant to use any car engaged in interstate traffic not provided with secure grabirons or handholds, and that said car or some of said cars which were being handled at the time and place of defendant's injury and which were being switched were cars that had come in from points beyond the state of Texas, and were destined to points in other states, and some contained articles of merchandise shipped from or having a destination beyond the borders of the state of Texas, and under the said act of Congress of the United States it was defendant's duty to provide secure handholds or grabirons on said car, which defendant failed to do, and such negligence of defendant thereby directly caused plaintiff's fall and injury, whereby defendant became liable to plaintiff for damages therefor."

Following those there were other allegations, in substance, that his injuries were caused by reason of said defective handhold.

In its answer the defendant, after specially denying the allegation that the handhold was insecure and defective, further alleged that it had no knowledge or information relative to the truth or falsity of the allegations that the cars which were being handled by the defendant at the time and place plaintiff claims to have been injured had come in from a point beyond the state of Texas, and were destined to points in other states, or that any 1 of them contained articles of merchandise shipped from, or having their destination beyond, the borders of the state of Texas, and hence was unable either to affirm or deny those allegations.

The defendant presented to the trial court a petition for removal of the cause to the federal court, upon the ground that it appeared upon the face of the petition that plaintiff was at the time of his injury engaged in the performance of duties pertaining to interstate commerce, and hence jurisdiction thereof was given to the federal court. As a further ground for removal it was alleged that defendant was incorporated under and by virtue of acts of Congress, and for that additional reason the suit is one arising under the laws of the United States. By an assignment of error appellant challenges the correctness of the order overruling that petition.

Section 8618, vol. 4, United States Compiled Statutes 1913, reads:

"On and after July first, nineteen hundred and eleven, it shall be unlawful for any common carrier subject to the provisions of this act to haul, or permit to be hauled or used on its line any car subject to the provisions of this act not equipped with appliances provided for in this act, to wit: All cars must be equipped with secure sill steps and efficient hand brakes; all cars requiring secure ladders and secure running boards shall be equipped with such ladders and running boards, and all cars having ladders shall also be equipped with secure handholds or grabirons on their roofs at the tops of such ladders: Provided, that in the loading and hauling of long commodities, requiring more than one car, the hand brakes may be omitted on all save one of the cars while they are thus combined for such purpose."

By section 8657 of the same statute it is provided that every common carrier while engaged in interstate commerce shall be liable for injury to, or death of, an employé —

"resulting in whole or in part from the negligence of any of the officers, agents, or employes of such carrier, or by reason of any defect or insufficiency, due to its negligence, in its cars, engines, appliances, machinery, track, roadbed, works, boats, wharves, or other equipment."

The statute last mentioned was one of the sections of an act of Congress passed April 22, 1908, and section 8662 of the statutes, which is another section of the same act, reads:

"No action shall be maintained under this Act unless commenced within two years from the day the cause of action accrued.

"Under this act an action may be brought in a [Circuit Court] of the United States, in the district of the residence of the defendant, or in which the cause of action arose, or in which the defendant shall be doing business at the time of commencing such action. The jurisdiction of the courts of the United States under this act shall be concurrent with that of the courts of the several states, and no case arising under this act and brought in any state court of competent jurisdiction shall be removed to any court of the United States."

The petition and bond for removal were filed in the trial court February 3, 1914, and the order overruling the petition bears the same date, while the judgment from which this appeal is prosecuted bears date January 2, 1915.

Section 5 and 6 of an act of Congress enacted January 28, 1915, read:

"Sec. 5. No court of the United States shall have jurisdiction of any action or suit by or against any railroad company upon the ground that said railroad company was incorporated under an act of Congress.

"Sec. 6. That this act shall not affect cases now pending in the Supreme Court of the United States or cases in which writs of error or appeals have been allowed at the date of its approval. And nothing in this act shall be deemed to repeal, amend, or modify the provisions of an act entitled ``An act providing for writs of error in certain instances in criminal cases,' approved March second, nineteen hundred and seven."

Act Jan. 28, 1915, c. 22, 38 Stat. 804.

Numerous decisions might be cited to the effect that, as the Texas Pacific Railway Company was incorporated by act of Congress, suits against it for damages in the sum sought in the present suit were removable from the state courts to the federal court, on the ground that it involved a question of law arising under the federal statute. But, as the employers' liability statute quoted above expressly provides that suits arising thereunder shall not be so removed, and as the present suit was brought under that act, that statute must govern to the exclusion of those decisions, rendered before its enactment. The decision of the United States Supreme Court in the case of K. C. S. Ry. Co. v. Leslie,238 U.S. 599, 35 S. Ct. 844, rendered June 21, 1915, reported in the advance sheets, and which appears in 59 L.Ed. at page 1478, is conclusive of that question in favor of appellee.

Several assignments of error are presented to the admission of testimony of nonexpert witnesses who gave their opinions relative to the physical condition of the plaintiff. One of those witnesses was Chas. A. Hall, who testified by deposition as follows:

"Interrogatory: Please state whether or not he (referring to Sherer) is able to walk as other people do. Answer: No; he is not"

Hall did not qualify as an expert witness, and defendant objected to the question and answer upon the ground that the answer stated an opinion and conclusion of the witness, was argumentative, irrelevant, and prejudicial to the appellant.

Another witness was J. F. Bowyer, likewise a nonexpert, who testified to observation he made of plaintiff's movements on several occasions, and to whom was propounded the following interrogatory:

"State in your own way his appearance and physical condition as it appeared to you when you saw him at different times."

To that interrogatory he answered:

"He appears to me as a man that is absolutely helpless as far as his lower extremities are concerned."

Witnesses H. B. Cornell, Boatwright, and Thomas McMillan, all of whom were also nonexperts, testified to opinions substantially to the same effect as those of the witnesses first named.

Appellant has cited the case of Roth v. Travelers' Insurance Co.,102 Tex. 248, 115 S.W. 31, 132 Am. St. Rep. 871, 20 Ann.Cas. 97, and other authorities in support of its contention that the admission of the opinions of those witnesses was erroneous. We find in the record, however, that testimony of all those witnesses practically to the same effect was admitted in evidence without objection on the part of appellant. For illustration: The witness Hall, referring to the plaintiff, testified as follows:

"I have to help him off and on. I have to lift his legs up for him. He has to drag himself along with his crutches."

The witness Bowyer testified:

"Mr. Sherer is not able to walk as other people do."

The Witness Cornell testified:

"He is unable to use his limbs for the purpose of walking and his manner of locomotion is merely dragging of his body and by the use of his crutches, and he apparently has no control over his legs from his hips down."

It is a rule well settled that the improper admission of testimony will furnish no ground for a reversal if the witness is allowed to testify to substantially the same facts without objection. Hittson v. State Nat. Bank (Sup.) 14 S.W. 993, and authorities there cited; W. U. Tel. Co. v. Gorman, 174 S.W. 925; Walker Grain Co. v. Denison Mill Grain Co.,178 S.W. 555; Jordan v. Johnson, 155 S.W. 1195; Railway Co. v. Dinwiddie, 146 S.W. 280.

B. S. Rodey, another witness for the plaintiff, was asked the following question:

"State whether or not you are a physician and have any knowledge or familiarity with surgery or medicine, or are you simply a layman in such matters?"

His answer thereto was as follows:

"I suppose I am simply a layman in such matters; yet I have tried so many personal injury cases as a lawyer and decided so many of them as federal judge of Porto Rico (see P. R. Fed. Reports, vols. 2, 3, 4, and 5) that the knowledge obtained in listening to physicians, together with whatever study of medical jurisprudence I have made, does, perhaps, give me a better knowledge of the human body and its injuries than the average man."

One of the objections urged by the defendant to that testimony was that it was argumentative, prejudicial to the defendant, irrelevant, and immaterial, and calling for extraneous matters. It will be observed that the answer of the witness was a qualifying statement only. The most serious objection to the answer was that it was argumentative, in that, in the opinion of the witness, his testimony should be given greater effect than that of the average man. But the objection was addressed to the answer as a whole, a part of which at least was not subject to that criticism. Furthermore, it is not probable that the argumentative portion of the answer was given any special significance by the jury. Further still, appellant has not pointed out any testimony of that witness relative to plaintiff's injuries, in order to show probable injury by reason of the argument.

Dr. W. T. Salmon, who qualified as an expert physician, and who, after testifying that he had carefully examined the plaintiff and found that his lower extremities were paralyzed, that he had a loss of sensation or feeling in the lower extremities, and which also extended through the lower two-thirds of his body, was further asked if he was able to give any definite opinion as to whether or not the injury to the plaintiff was permanent. To that question he answered as follows:

"The unexpected can happen. If my diagnosis is correct, there is not an authentic history of any case of this nature recovering."

To this answer defendant objected on the ground that it was argumentative and involves extraneous matters which are irrelevant and immaterial to the issues of the present case. We do not think there was reversible error in this ruling. The testimony was but the expression of an opinion by a witness who had shown himself qualified to give such an opinion.

Dr. J. M. Givins, over objection of defendant, was permitted to testify in answer to a hypothetical question propounded, in substance, that if Sherer fell from the top of a car and struck the ground, or ties, or some other hard substance, with his back that, in the opinion of the witness, the blow which he might have received would have been sufficient to render him unconscious, cause him to spit blood, and would probably result in paralysis. The objection to this testimony was that there is no evidence to show, or tending to show, that the plaintiff, when he fell, struck with his back upon ties, or other hard substance. Notwithstanding the fact that Sherer testified, in effect, that he did not know just how he struck the ground, or upon what he struck, yet the majority are of the opinion that, in view of other testimony introduced, there was no error in that ruling.

Article 6713, vol. 4, Vernon's Sayles' Texas Civil Statutes, reads:

"It shall be unlawful for any common carrier, engaged in commerce as aforesaid, to use in moving interstate traffic within said state any locomotive, tender, cars, or similar vehicle which is not provided with sufficient and secure grabirons, handholds and foot stirrups."

The substance of that article, and also the substance of article 8618 of the Federal Statutes, quoted above, were given in the court's charge to the jury, following which was another instruction reading:

"Now, keeping in mind the foregoing instruction, if you find and believe from the evidence that plaintiff was injured on the occasion in question without fault on his part, and while exercising ordinary care for his own safety, and you further find and believe from the evidence that said injuries, if any, were directly and proximately caused by reason of the handhold on said car being insufficient and insecure, then in that event you will find for the plaintiff."

Based upon the contention that plaintiff's pleadings did not present a cause of action arising under the state statute, appellant has assigned error to the action of the court in charging the duties imposed by that statute. We are of the opinion that the allegation of insecurity of the handhold contained in the fourth paragraph of the petition, followed by the further allegation in the fifth paragraph that the statutes of the state required defendant to see to it that cars used by it are equipped with safe and secure handholds, and made it unlawful to use cars not so equipped; was sufficient, especially in the absence of a general demurrer, to show liability for the injuries alleged to have resulted by reason of such defective equipment.

Testimony was introduced which tended to show that some of the cars in the string of cars which were being switched at the time of the accident were loaded with interstate freight, while the one from which plaintiff fell was loaded with intrastate freight. This evidence, if true, would support a finding of liability under the federal statutes, as well as under the state statutes, since the setting of the brakes on the car equipped with a defective handhold was to control the movement, not only of that car, but of the interstate traffic cars as well. T. P. Ry. v. White, 177 S.W. 1185, and authorities there cited.

Appellant's complaint of the court's ruling in permitting witness Hatfield to testify to the character of freight handled by cars generally during the night prior to the accident, which happened about 4 o'clock a. m., instead of confining such testimony to the character of freight with which the particular string of cars in question were loaded at the time of the accident, is based upon the assumption that the evidence showed without controversy that all that string of cars was loaded with intrastate traffic, and that no liability under the state statute had been alleged, which assumption is contrary to our conclusions stated above.

The evidence showed that the car from which plaintiff fell did not belong to appellant, but had been delivered to it by another railway company, and that too only recently; and there was evidence further tending to show that the defect in the handhold could not have been discovered by such inspection as is usually and carefully made to discover defects in such equipments.

Under the common-law rule for establishing negligence, such evidence especially would have required the submission to the jury for their determination the issue whether or not appellant was guilty of negligence in using the car with such defective equipment, and to render a peremptory instruction on that issue in favor of plaintiff reversible error. Predicated particularly upon that evidence and that rule of the common law, assignments of error are presented to the action of the court in charging the jury, in effect, that the use by the defendant of the car equipped with the defective handhold was negligence per se; one of the assignments being based upon the refusal of defendant's requested instruction, in substance, that if the car, although so equipped, did not belong to the defendant, and if defendant, by the exercise of ordinary care, could not have discovered such defective condition of the handhold in time to avoid the accident, then a verdict should be returned in its favor.

But it is well settled by the decisions of the Supreme Court of the United States that a violation of the federal Safety Appliance Act, noted above, is negligence per se, and that the common-law rule for determining whether or not the failure to perform a duty of that character is negligence does not prevail. St. L., I. S. Ry. v. Taylor,210 U.S. 281, 28 S. Ct. 616, 52 L. Ed. 1061; C., B. Q. Ry. v. United States, 220 U.S. 559, 31 S. Ct. 612, 55 L. Ed. 582.

It is also well settled by the decisions of this state that a failure to comply with such statutes as our employers' liability statute quoted above is negligence per se. G., H. S. A. Ry. v. Kurtz, 147 S.W. 658; H. T. C. Ry. v. Wilson, 60 Tex. 142; I. G. N. Ry. v. Kuehn,70 Tex. 582, 8 S.W. 484; S. A. A. P. Ry. v. Bowles, 88 Tex. 634,32 S.W. 880; G., H. S. A. Ry. v. Roemer, 173 S.W. 229.

Accordingly, testing plaintiff's right of recovery either by the state statute or by the United States statutes, there was no error in the charge of the court that plaintiff would have a right to recover if his injury was caused by a defective handhold upon the car, thus, in effect, charging that a violation of either of the statutes referred to would be negligence per se. From this conclusion it follows that the assignments of error presenting the contention that the question whether or not the defendant was guilty of negligence in using the car from which plaintiff fell, equipped as it was with a defective handhold, should have been submitted for the determination of the jury as a controverted issue of fact, must be overruled. We are of the opinion further that the submission of the issue of permanent injury in the court's charge upon the measure of damages had a proper basis in plaintiff's petition contrary to the contention made by another assignment of error. And from the conclusions already noted it follows that there was no error in the court's refusal of defendant's requested instruction peremptorily directing a verdict in its favor, complaint of which ruling is made by another assignment predicated upon the proposition that there was no evidence to show that plaintiff was injured while engaged in interstate commerce, but that it conclusively showed that he was at that time engaged in intrastate commerce, and that there was no pleading alleging that fact.

By defendant's assignments of error it is insisted that the verdict and judgment are erroneous because without sufficient evidence to support a finding that plaintiff sustained the injuries for which damages were allowed, especially the alleged injury to plaintiff's back and spinal column which it was alleged resulted in paralysis of his legs and certain physical organs. Following are the conclusions of the majority as expressed by them upon the assignments last mentioned:

"The majority think the statement of facts shows conflicting evidence in volume and of a character to take the issue to the jury and to sustain the finding of the jury thereon. True, the appellee's frank acknowledgment of falsification in making application for employment is well calculated to discredit his testimony and put him in an unfavorable light. But we do not believe such fact would justify the trial court in peremptorily charging the jury to find for the defendant, nor would it alone require that we should reverse the judgment upon the ground that the trial court, who heard the plaintiff and other witnesses testify, had an opportunity to judge as to their apparent truthfulness, and generally observe their demeanor while upon the witness stand, erred in failing to grant a new trial. Appellee, on examination in chief and upon cross-examination, testified at great length, and his acknowledgment, together with his explanations thereof, his manner of testifying, his air of sincerity, or otherwise, were all before the jury, and the jury, under the court's charge and by the express terms of our statute on the subject, were the exclusive judges of the credibility and the weight to be given to his testimony ; so that the majority do not feel that it can be said as a matter of law that appellee perjured himself in testifying as he did that he was seriously and permanently injured in the manner detailed by him as a result of his fall. Moreover, the other testimony seems to establish without dispute the fact of a defective handhold, as appellee testified, and that he fell, or was found upon the ground in at least an apparently injured condition. Appellee's wife was explicit and positive in her statements of appellee's injuries. Of the nonexpert testimony many of the witnesses had observed appellee over periods of time of considerable length; many of them gave their opinion in positive terms of his condition. All of the physicians testified in his behalf qualified themselves as experts. Several of them examined him carefully, applying tests satisfactory to themselves, and gave it as their opinion that appellee was paralyzed, stating that such opinions were not based upon appellee's statements, but independent thereof. And the fact, in the opinion of the majority, that appellee was unable, or failed, to give a clear account of the precise place or manner in which he fell to the ground or to explain precisely the place or organ injured at the time, will not destroy the effect of the testimony as a whole. So that, after as careful a consideration as the majority have been able to give it, we are of the opinion that the assignment of error attacking the verdict and judgment as unsupported by the evidence must be overruled."

For the reasons indicated, all assignments of error are overruled, and the judgment is affirmed.