Atchison, Topeka S. F. Ry. Co. v. Seeger , 59 Tex. Civ. App. 525 ( 1910 )

Appellee sued appellant to recover damages arising from personal injuries received by him while in the employment of appellant as a fireman, the injuries having been received in the Territory of Arizona. It was alleged that appellee was a fireman on a train drawn by two engines, he being employed on the rear engine, and that he, in discharge of his duties, was under his engine cleaning out the ashpan, when there was a sudden movement of the engine and his arm was badly hurt. He alleged that the movement of the engine was caused by the leaky condition of the throttle and throttle valve on the front engine, which caused the steam to escape into the cylinder and result in an automatic movement. Appellant answered that the injuries were received through the negligence of the engineer on the front engine, who was, in Arizona, a fellow servant of appellee, and that he could not, therefore, recover. The cause was tried by jury, and resulted in a verdict and judgment for appellee for $7,922. This is a second appeal. (44 Texas Civ. App. 534[44 Tex. Civ. App. 534], 98 S.W. 892.)

It appears from the evidence that engine number 681 was attached to an engine in the rear of it which was attached to a train, and the rear engine was known as number 690, upon which appellee was working as a fireman. In January, 1903, while the two engines were at a standstill at the town of Williams, in Arizona, appellee went under the rear engine, number 690, to clean out the ashpan, and while under there he heard three short blasts of the whistle of front engine number 681, which meant it wanted to "back up," and the engines moved, and appellee was seriously and permanently injured in one of his arms. The evidence justifies the conclusion that the accident would not have occurred had it not been for the defective condition of engine number 681, which defective condition was known to appellant. The throttle or throttle valve on the engine was leaky and would permit steam to escape into the cylinder and cause the engine to move when the lever was down and the brakes off. With an engine in good condition, standing still, the putting down of the reverse lever and taking off the brakes, without opening the throttle, would not cause the engine to move. The throttle was not open, and when the engineer put down the reverse lever, gave three signals and released the brakes, he did not expect the engine to move until the throttle was opened. The engine did move, however, because steam had escaped from the defective throttle of the engine into the cylinder. The engineer on engine 681 swore that he did not know that appellee was under the rear engine. We conclude that the defective condition of the throttle was the proximate cause of the injuries to appellee. There was no testimony tending to show that the engineer knew that the cylinder had accumulated by the leakage sufficient steam to move the train.

The evidence clearly showed that the injuries inflicted on appellee resulted from the negligence of appellant in furnishing a defective engine, and if it be conceded that the engineer was negligent in reversing the lever and releasing the brakes, the defect was an active concurring cause with the act of the engineer in producing the result, and appellant was liable. Texas P. Ry. v. Scott, 64 Tex. 549; Houston T. C. Ry. v. O'Hare, 64 Tex. 602; St. Louis S. F. Ry. v. McClain,80 Tex. 85; Ft. Worth D.C. Ry. v. Mackney,83 Tex. 410; Gulf, C. S. F. Ry. v. Johnson,83 Tex. 628. If there were expressions used on the former appeal that trenched in any manner upon the foregoing well established proposition of law, they must be disregarded.

The charge, whose rejection is complained of in the second assignment of error, ignores the principle of the negligence on the part of appellant in furnishing a defective engine concurring with the act of the engineer in producing the result, and was properly rejected. The court gave the law applicable to the facts of the case:

The third assignment of error is overruled. The charge of the court was full and explicit on the point sought to be presented in the rejected charge.

The fourth, fifth, sixth, seventh, eighth, ninth, tenth, eleventh, twelfth and thirteenth assignments of error complain of the rejection of special charges requested by appellant. They are not sustained for the reason that every issue in the case was clearly submitted to the jury in the charge of the court, and it was unnecessary to give the special charges, or any of them, even though some of them might have contained correct propositions of law. Several of the special charges were clearly erroneous under the facts.

The charge complained of in the fifteenth assignment is a portion of a charge that is not subject to criticism when read in connection with the part from which it has been disconnected. Any charge can be distorted if only garbled portions of it are taken up for criticism.

The sixteenth assignment of error fails to point out the portion of the charge that is assailed, and presents nothing for consideration. It may be said, however, that the evidence raised the issue of the acts of the engineer and appellant concurring to produce the result.

The charge complained of in the seventeenth assignment was not unfavorable to appellant, and it has no ground for complaint. There can be no possible doubt that if the leaky throttle was furnished by appellant, and it was negligence to furnish it, and such defective throttle was the proximate cause of the injury, appellant was liable for the injuries inflicted thereby, and the converse of that proposition is what appellant has complained of.

The charge assailed in the eighteenth assignment of error does not assume any state of facts, but every fact was presented to be found by the jury from the preponderance of the evidence. It can not be said, with due regard to the record, that there was no testimony that the engineer did not intend to start the engine when he moved the lever and released the brakes, when the record shows that the engineer swore: "I did not expect my engine to move until the throttle was open." It does not matter that he may have contradicted himself in connection with that statement; it was the province of the jury to reconcile the inconsistencies in the testimony. The court did not have the authority to reject the testimony on account of contradictions in it.

It appeared from the evidence that appellee's arm was crushed from about the wrist to his shoulder; that it was in bad condition at the time of the trial, and that there was a running sore on the elbow that would probably never heal, and that he had suffered great pain which had not ceased, and that he was unable to do anything for over a year. We do not think a verdict for $7,922 excessive.

The twentieth assignment of error is without merit. The court, in the charge assailed, does not assume the existence of any fact. The court did not assume that the throttle was leaky nor that steam would escape, but with the greatest care guarded against assuming that either existed. The charge was fully justified by the evidence.

The twenty-first and twenty-second assignments are reiterations of other assignments herein considered, and are overruled. The judgment is affirmed.

Affirmed.

Writ of error refused.