Citation Numbers： 163 S.W. 1063, 1914 Tex. App. LEXIS 567
Judges： Higgins
Filed Date： 2/13/1914
Status： Precedential
Modified Date： 10/19/2024
. This was a suit by William J. Glover against the defendant in error, a corporation operating a' railroad in this state, to recover damages resulting from personal injuries alleged to have been sustained on April 21, 1910, while in-the employ of defendant in error.
At the time of the accident upon which this suit is based, Glover was one of a crew of men engaged in unloading certain metal forms, referred to in the record as crossings or frogs, from á coal car in the railway company yards in Houston, under the direction and control of defendant’s foreman, Phillips. A wrecking car was used in unloading the forms. Built upon the wrecking car was a long boom or derrick,, from the outer end of which hung a cable and upon the end of the cable was a large hook; chains would be wrapped around the forms, the cable mentioned pulled down and hooked to the chains around the forms. The boom was operated by a steam engine on the wrecking ear, and when the hook at end of cable had been attached to chains around forms, upon signal from Phillips, the engineer upon the wrecker would apply the power and lift the forms out of the car; while one of the forms was ■being thus lifted, it swung towards the side of the. car where plaintiff was standing, and he, thinking he was in danger therefrom, leaped from the car, sustaining the injuries complained of. Negligence on the part of defendant was charged in a number of respects not necessary to mention in disposing of the questions presented by this appeal. Upon trial verdict was returned in favor of defendant upon which judgment was rendered, and it is now before this court for review. . ...
After defendant :in error had filed its brief in this court, the plaintiff in error filed what is styled a “Written Argument and Supplemental Brief of Plaintiff in Error.” We will consider only the argument contained in same. In great part it is an amendment to the original brief filed, undertaking to re-present and re-brief various assignments of error. This is not such an amendment to the original brief as is permitted by rule 38 (142 S. W. xiii), and consideration thereof will be limited as stated. Peck v. Morgan, 156 S. W. 917; Greene, etc., v. Silbert, 158 S. W. 803.
Special charge No. 1 was properly refused, since the issue presented thereby was sufficiently covered in the court’s main charge. .
Special charge No. 2 was argumentative, and upon the weight of the evidence, and its refusal presents no error.
In the sixth assignment it is complained that the eighth paragraph is erroneous in that it ignored plaintiff’s right of recovery, based upon the failure of defendant’s foreman, Phillips, to maintain a proper lookout while crossing was being hoisted, and stpp-ping same in time to avoid the injury. The charge is to be construed as a-whole, and in the twelfth paragraph, the right of recovery upon this issue was submitted generally, and its omission from the eighth paragraph therefore presents no reversible error.
The seventh assignment attacks the sufficiency and correctness of the thirteenth paragraph of. the general charge. It is first objected thereto that it failed to define contributory negligence. There was no necessity that it should have been defined in this particular paragraph, and, since it is elsewhere defined, this criticism is wholly without merit.
The second proposition subjoined to this assignment raises and submits two separate and distinct propositions of law. It is therefore subject to the objection of multifariousness, and is not entitled to be, and will not be, considered. McAllen v. Raphael, 96 S. W. 760; De Hoyes v. Ry. Co., 52 Tex. Civ. App. 543, 115 S. W. 75; Driver v. Wilson, 68 S. W. 290; Wichita, etc., v. Adams, 146 S. W. 271.
The scope and meaning of the third proposition is not clear. As we construe same, it contends that the paragraph of the charge in question is faulty, in that it limited plaintiff’s right of recovery unless there' .was negligence on part of the foreman, Phillips, which caused the injury, and in failing to define the foreman’s duties and what would constitute negligence on his part. It would seem that this proposition is likewise subject to objection as being multifarious, but, since we are doubtful whether we grasp its correct interpretation, we will dispose of it upon what we conceive to be the issues presented. The paragraph of the ' charge here questioned is an affirmative presentation
The fourth proposition cannot he considered. It is multifarious, and is not supported by such statement as the rules require. Rule 31 (142 S. W. xiii) provides that “to each of said propositions there shall be subjoined a brief statement, in substance, of such proceedings or part thereof,- contained in the record, as will be necessary and sufficient to explain and support the proposition, with a reference to the pages 'of the record.” This provision requires the “substance” of the proceedings relied upon as supporting the proposition to be stated, and it is not sufficient to merely refer the court to the parts and pages of the record relied upon. Colorado Canal Co. v. Southwell, 50 Tex. Civ. App. 92, 109 S. W. 435; Walker v. Ry. Co., 54 Tex. Civ. App. 406, 177 S. W. 1020; Ry. Co. v. Lane, 118 S. W. 847; Ry. Co. v. Wafer, 130 S. W. 712; Broussard v. So. Tex. Rice Co., 120 S. W. 587; Kirby Lbr. Co. v. Chambers, 41 Tex. Civ. App. 632, 95 S. W. 607; Johnson v. Lyford, 9 Tex. Civ. App. 85, 29 S. W. 57; Ry. Co. v. Olds, 112 S. W. 787; Johnson v. Hulett, 56 Tex. Civ. App. 11, 120 S. W. 257. A proper observance of this rule will materially aid in the proper consideration and disposition of causes upon appeal, and will be enforced by this court.
The fifth proposition is unsupported by proper statement, and will not be considered.
The error, if any, complained of in the eighth assignment, as presented by the first proposition thereunder, was invited by plaintiff in error, and he is estopped to complain thereof. The second proposition under this assignment will not be considered because it is multifarious.
The tenth ■ assignment is submitted as a proposition. As such it is subject to the same objection, and is not considered.
The eleventh assignment complains of a paragraph of the court’s charge directing a verdict for defendant if the jury believed “that plaintiff’s injuries, if any, were sustained through the negligence of his coworkers on said car, other than Phillips.” In support of this assignment the following •proposition of law is urged: “This was against the law. The plaintiff was engaged in operating a car propelled by steam, which was moving from point to point by the force of its own power, unloading metal track •crossings and frogs for the construction of switch tracks, and he was within the .meaning of article 6640, Civil Statutes, which gives the right of recovery for injuries for negligent acts of fellow servants.” In the consideration of this assignment .we are, limited to the supporting proposition. Ry. Co. v. Wood, 41 Tex. Civ. App. 226, 92 S. W. 259; Ariola v. Newman, 51 Tex. Civ. App. 617, 113 S. W. 157; Williamson v. Powell, 140 S. W. 359; Ry. Co. v. Drahn, 143 S. W. 357; Ry. Co. v. Brown, 147 S. W. 1177.
The only question, therefore, which we will consider is plaintiff’s right to recover for the negligence of his fellow servants under provisions of article 6640, R. S., pretermitting any discussion of liability for the negligence of a fellow servant upon a phase of the case readily apparent but not urged. This statute renders a railway corporation liable for all damages sustained by its servants while engaged in the work of operating its cars by reason of the negligence of any other servant, regardless of the rules of the common law relating to non-liability where the negligent servant and the injured one were fellow, servants. It is clear that all of the employés engaged in operating the' wrecker and unloading the crossings were fellow servants with each other, except the foreman, Phillips, so the question is reduced to a determination of whether he was injured while engaged in the work of “operating” cars within the meaning of the statute.
The coal car containing the metal crossings was attached to the wrecking car, and on the morning of the accident the two cars were brought by a switch engine to a switch in the yards. The wrecker had an engine on it which furnished the motive power for the machinery of the car, and it also furnished motive power whereby the car itself could be moved from one place to another. After arriving at the switch, the same was thrown by Glover, and he signaled to McGuire, who operated the engine and machinery of the wrecker, and the wrecker by its own power was propelled, together with the coal car, about 1½ blocks, to point where crossings were to be unloaded. The testimony of plaintiff is here quoted as pertinent to the question considered, viz.: “During April of 1910 I was working in the gang with Mr. Phillips; that was the time that I got hurt. On the day that I was hurt I was looking for numbers on the crossings as Mr. Phillips would call them out; he would get them from the blueprint and call them out to me. I was working on the coal car to which we had attached a wrecker. [Counsel hands witness Exhibit-]. That is the car right there, that is it as it is shown in this picture. I had been working there on that car two days. Mr. Phillips employed me to work there. When he employed me, and the day that we were down there, he told me to pick out the numbers and reach up and keep the boom off those fellows’ heads when it came in the car, and pull the sláck out of the cable as quick as I could; that was the instructions that he gave me the day that I was hurt; that he wanted to get through by dinner. The picture of the wrecking car which you have here looks like .the one that
The question to be determined is not without some difficulty in view of the apparent confusion in the authorities; but we cannot concur in the contention of defendant in error that at the time of his injury Glover and his colaborers were not engaged in the operation of a car within the meaning of the statute. Freeman v. Shaw, 126 S. W. 53 (writ of error refused), Ry. Co. v. Thornton, 46 Tex. Civ. App. 649, 103 S. W. 437, By. Co. v. Pelfrey, 35 Tex. Civ. App. 501, 80 S. W. 1036, Ry. Co. v. Webb, 31 Tex. Cr. App. 498, 72 S. W. 1044, Mounce v. Lodwick Lbr. Co., 91 S. W. 240, Ry. Co. v. Walton, 47 Tex. Civ. App. 43, 104 S. W. 415 (writ of error refused), and Ry. Co. v. Johnson, 55 Tex. Civ. App. 495, 118 S. W. 1117, cited by plaintiff in error do not seem to be wholly in harmony with Ry. Co. v. Anderson, 102 Tex. 402, 118 S. W. 127, Ry. Co. v. Howard, 97 Tex. 513, 80 S. W. 229, Hampton v. Woolsey, 139 S. W. 889, Ry. Co. v. McGee, 141 S. W. 1054, Lakey v. Ry. Co., 33 Tex. Civ. App. 44, 75 S. W. 566, and Lawrence v. Ry. Co., 25 Tex. Civ. App. 293, 61 S. W. 342, cited by defendant in error, and in some respects it would seem that the two lines of eases are irreconcilable. It is true that Ry. Co. v. Webb, supra, was in effect overruled by Ry. Co. v. Anderson, supra, but such action does not necessarily carry with it a disapproval of all of the views expressed in the Webb Case. The latest expression of the courts upon the subject is found in Freeman v. Shaw, supra, in which a writ of error was refused, and this latter case quoted with approval the holding in the Webb Case that the term “operation” as used in the statute “evidently comprehends something more than the mere running of cars, locomotives, and trains of a railway company.” This seems to us to be a correct view of the statute, and that there is nothing ⅛ the line of cases last cited, warranting the assumption that the Supreme Court has adopted the narrow and restricted view that the term “operation” is limited to the running or propelling of cars, locomotives, and trains from one point to another. We see no reason why the statute does not apply to the stationary “operation” of a car such as was being here operated, and a contrary holding would be in the face of the statute. The wrecker, as stated, was operated by machinery, and the attached car containing the crossings was being unloaded. The machinery of the wrecker and the labor of Glover and his fellow servants were being jointly employed in the work of unloading the coal car containing the crossings. They were all engaged in the common task of unloading the crossings from the coal car, and in performing this service they were operating the wrecker; McGuire was manipulating the engine and derrick; McGowan, Mims, and Edwards were fixing the chains on the crossings, and hooking same to derrick; Glover was engaged in locating the particular crossings to be next hoisted and unloaded. It would scarcely be contended that McGuire, 'who operated the engine and derrick of wrecker, was not engaged in the operation of a car within the meaning of the statute, and yet Glover and his colaborers were co-operating with him in the operation thereof by performing service necessarily incident to the operation of the wrecker and derrick and the unloading of the crossings.
As was noted by Judge Levy in Freeman v. Shaw, supra, the meaning of the statute is not involved in obscurity or doubt, but the difficulty lies in determining its applicability to given facts. No general rule can be formulated by which its applicability in all instances can be determined, and ordinarily each case must be tested by its own facts. In the instant case this court is of the opinion that, under the facts stated and evidence quoted, Glover was protected against the negligence of his fellow servants under the statute mentioned, being at the time engaged in the “operation” of a car within the meaning of the statute. The eleventh assignment is therefore sustained.
The charge is not subject to the objections urged in the twelfth and thirteenth assignments.
That portion of the charge quoted in the fourteenth assignment does not seem to have been raised by the evidence, and should not have been given, but of itself this furnishes no ground for reversal; the apparent error being harmless.
The error first complained of in the court’s charge in assignments 15, 16, and 17 was invited by plaintiff in a charge requested by him, and he is estopped to complain thereof. As to the second objection, the charge taken as a whole is not subject thereto.
The eighteenth, twenty-fourth, and twenty-fifth assignments are grouped. They are not germane, and are improperly1 grouped, for which reason they will not be considered.
Assignment 31 is submitted as a proposition. It will not be considered, for as such it is multifarious. As to the subjoined prop-
The point made by the twenty-ninth assignment is without merit.
The nineteenth and twentieth assignments are grouped. They áre not considered because: (a) They are not germane and are improperly grouped; (b) they are submitted as propositions, and as such are multifarious, vague, and indefinite.
In the twenty-third assignment complaint is again made of the failure of the court in its charge upon assumed risk to apply the qualifications of article 6646, R. S. Plaintiff in error seems to have had a desire to present this question by as many assignments as possible. We again hold that the assignment is not well taken; the error having been invited.
Assignments 22, 27, and 28 are grouped. They are not germane, and will not be considered. In passing, however, it may be said that the question presented by the twenty-seventh and twenty-eighth assignments is passed upon by what is said in disposing of the eleventh.
The twenty-first assignment and subjoined proposition are wholly without merit.
The twenty-sixth assignment complains of the action of the court in limiting plaintiff in error’s counsel in his argument to 1 hour and 16 minutes time. No reason is apparent why this was not more than sufficient time, and there is nothing to indicate that the limitation upon the flow of oratory was harmful. The assignment must therefore be overruled.
The thirty-second and thirty-fourth assignments relate to the evidence. In view of a reversal upon other grounds, comment thereon would be improper.
Reversed and remanded.