Lovett v. Gulf, Colorado & Santa Fe Railway Co.

The Court of Civil Appeals reversed a judgment of the District Court, recovered by plaintiff in error against the defendant in error for damages for personal injuries, and rendered judgment in favor of the defendant. The court based its action upon two propositions which were: (1) there was no evidence of negligence on the part of the defendant; and (2) that the evidence conclusively established contributory negligence on the part of plaintiff. Upon a close examination of the evidence this court is of the opinion that the first reason, if not the second, is sound. It is important to determine the legal relation in which plaintiff and defendant stood to each other when the former received his injuries. Plaintiff was an employe of Ricker, Lee Co. and not of the railroad company. Nor was he, when hurt, a passenger. The railroad company owned a gravel pit situated a short distance from its road, from which it obtained gravel used in improving its tracks, etc. From its main line to this pit was a spur track used by defendant, not for carrying freight or passengers, but solely for the transportation of the gravel for its own use. Upon this spur it operated a switch engine to haul empty flat cars to the pit and loaded ones from the pit to a siding upon its main line. Ricker, Lee Co. were independent contractors, who had engaged with the defendant to get gravel out of the pit and load it upon the cars, and for this purpose had employed plaintiff and other hands. The duty of the servants of the railroad company was, therefore, to carry empty cars to the proper points for loading and loaded ones to the siding mentioned, while that of the servants of Ricker, Lee Co. was to load the cars with gravel. The last mentioned servants boarded at the station house upon defendant's main line about three-fourths of a mile from the pit. The contract between the railroad company and Ricker, Lee Co. did not obligate the former to convey the employes of the latter to and from this boarding place or to perform for them any service which affects the questions before us. These employes had for a long time been in the habit of riding on the engine and cars back and forth from the pit to the section house, and we shall assume that the evidence justifies the conclusion that this was done with the permission of authorized agents of the railroad company. This is the strongest statement of the right of the men to so ride that can be made consistent with the evidence. Sometimes the trip was made with engine alone, while at others it had attached to it cars, loaded or empty. The men sometimes walked, but generally rode to and from their boarding house, selecting for themselves the parts of the engine or train which they would occupy, except that the engineer did not allow them to ride in the cab. The evidence indicates that they stood upon the footboard of the engine as well as at any other place they chose. On the day of plaintiff's injury he and the other hands of Ricker, Lee Co. were going from the pit to their dinner upon the train consisting of the engine and a number of flat cars loaded with gravel. The plaintiff and another employe stood upon the footboard of the engine between it and the next flat car, holding on by hand-holds upon the rear end of the engine. A third employe sat upon the end of this flat car with his feet hanging down between it and the engine. The plaintiff claims that he was thrown from this position and in front of the wheels of the car by a sudden jerk, or jar, caused by the negligence of the engineer. Neither the other man, who stood upon the same foot board, nor he who sat upon the car next to them, was injured or disturbed. When closely scrutinized, the evidence descriptive of this jerk and its effect is all that is adduced to support the charge of negligence. There is evidence, it is true, that tends to show that the engineer was approaching the main track at too high rate of speed when another train made its appearance thereon near the switch leading to the spur track; and it is contended that the danger of a collision, thus brought about by the negligence of the engineer, necessitated a sudden stop which caused plaintiff's injuries. But it was only a jerk which, plaintiff claims, caused the fall, and, assuming that it was produced by some action of the engineer, the question at last is, was the jerk of such character as to constitute evidence that such action as the engineer took was negligent?

It must be considered that plaintiff was neither a passenger, nor an employe in the discharge of his duty. He was simply a volunteer riding with permission of defendant, gratuitously given, in the place selected by himself. Downey v. Chesapeake O. Ry. Co., 28 W. Va. 742. He was riding upon a gravel train, in a position from which he would easily be thrown by jerks and jolts to which such conveyances are subject, even when carefully operated. In availing himself of the permission to ride, he assumed all the risks which arose from the character of the conveyance and the ordinary method of operating it. The servants of the railway company owed him only the duty of taking ordinary care not to injure him, and, subject to that duty, had the right to operate the train as the exigencies of the business of their employer required. With these facts in mind, can it be said that a jerk which threw plaintiff from such a position on such a train is evidence of negligence on the part of the engineer in operating such train. He describes it as a "sudden jerk" or "jar," "a sudden sort of stop," which broke loose his hold, when he was holding to the hand-hold "as tight as a man could hold anything," and threw him off. He further testified, "I was holding on as tight as was necessary to keep me from falling off that train," after which the following questions and answers occur in the record:

"Q. Then it would take a very violent jar to jar you off, wouldn't it? A. Well, it throwed me off.

"Q. Well, it wasn't a very violent jar, was it? A. It was a violent jar to me.

"Q. If it was a violent jar to you, wasn't it a violent jar to the train? A. I suppose so."

The record further shows that, except by inference from seeing the other train on the main line, the application of the air brakes and the jerk, as he describes it, plaintiff had no knowledge of what the engineer did; and all of the other evidence in the case is to the effect that the engineer did nothing to cause an extraordinary jar of the engine. The use of such words descriptive of the character of the jerk in such a train is, in our opinion, insufficient to raise an inference of negligent action on the part of the engineer, of which there is no other evidence, especially when considered in connection with the undisputed fact that others equally exposed with plaintiff were not affected. In some cases such a fact might speak for itself and furnish evidence of negligence, as in the case of a passenger thrown from a train (Choate v. Railway Co., 90 Tex. 82); but the probability of such occurrences in this kind of train, properly managed, to one exposed as plaintiff was, renders such a conclusion inadmissible under the facts of this case. It is unnecessary to consider the other reasons for the action of the Court of Civil Appeals.

Affirmed.