Opinion
No. 3871.
December 15, 1930. Rehearing Denied December 31, 1930.
Appeal from District Court, Bowie County; Geo. W. Johnson, Judge.
Action by B. F. Kelly, Jr., against the Texas Pacific Railway Company. Judgment for plaintiff, and defendant appeals.
Affirmed.
B. F. Kelly, Jr., sued the railway company to recover damages resulting from injuries sustained by him on June 26, 1928, while in the employ and working as a member of a crew of workmen engaged in putting in an interlocking system of signals at Texmo Junction, near Alexandria, La. The railway company has appealed from the judgment which was entered in favor of Mr. Kelly in keeping with the verdict of the jury.
The main line of the Texas Pacific Railway Company extends from New Orleans, through Alexandria, La., to Marshall, Tex., and other points in Texas beyond Marshall. It was an agreed fact in the case that the railway company was actually engaged daily in interstate business of carrying through passengers and freight over its main line of railway and over the tracks in controversy before and at the time of the injury. Texmo Junction is so called because it is a point in the western suburbs and a part of the city of Alexandria where the main line track of the Missouri Pacific Railroad intersects the main line track of the Texas Pacific Railway Company. The two railway companies jointly maintained what was called the "Alexandria terminal." The Texas Pacific Railway Company owned and operated the double track leading from the Texmo Junction crossing through the terminal yards and to and beyond the passenger station in Alexandria. By a traffic agreement, as testified, the Texas Pacific, Missouri Pacific, and Southern Pacific freight and passenger trains were operated over the tracks of the "Texas Pacific between the Alexandria terminal and Cheneyville, Louisiana." Many trains, both freight and passenger, were daily operated over the tracks in the terminal.
Several weeks before the date of the injury in suit, a crew of workmen, of whom the appellee was one, under Mr. McGawan as foreman, had been engaged in erecting, placing in position, and making ready for use, a complete interlocking system of signals in the terminal at Texmo Junction and through the terminal. By means of this complete mechanical apparatus or plant, all trains were to be controlled and managed in passing over the crossings, switch, and yard tracks. The system was shown to add greatly to the safety of railway traffic. At the time of the injury and the placing of this mechanical plant, the trains of appellant and the other railway companies were controlled in their movements over the crossing and switches by means, viz., after the train had come to a stop, the trainman from the train, after seeing that the crossing or track was not to be used by another train, would, by means of a hand-operated switch, turn and set the switch to permit his train to pass on over the crossing, switch, or yard track. The interlocking system of signals being put in was shown to consist of interrelated levers and light, controlled from a tower located at the crossing. It was a system of devices whereby signals denoting the positions of the switches at crossings and track junctions are, by means of locking mechanism, connected with, and controlled by, the switch mechanism, in such manner that any movement of the switches operates the proper signals to indicate to train operatives the position in which the switch is set. The interlocking levers, or levers connected to the rods running by the tracks, lock the "switch points," or the end of the rails, so that the rails or switch could not inadvertently be thrown or opened while a train is moving over the track. Mr. McGawan, the foreman, says: "A mechanical interlocker is a device so arranged that you cannot run but one train at a time through a certain track. It is upstairs (in the tower house) on a machine. It is locked with lockingbars. It is so arranged that you cannot pull one lever unless all the tracks are lined up and set in the right manner. In pulling a lever, you throw (and set) your switches on the ground. It makes a safety device for trains. The lights are up the track in the proper places. You have a signal lever you use to throw to give the proper light. It has an electrical connection that makes a contact with the other lights. The mechanism of this device is in the tower house, and it is handled by man-power. A man situated in the tower house operates it."
At the time of the injury in suit, the tower house, a three-story building, was built, and the interlocker was installed therein. The rods or "pipe-line," as termed, leading from the tower house to the points on the track where the switches were located, were all laid and completed, but were not physically connected up or attached to the bridle rods of the switches for operation and control of the switch points or ends of the rails. The required special bridle rods for connecting up the switches had already been placed on the switches. There were five switches to be operated. No new switches or rails were put in. The work done on the switches was such only as attaching rods and insulation plates. The electric appliances and signal stands and light poles to be used in connection with the interlocker had not all been installed, but were being installed. The wiring or banding of the rails had been done. No changes had been made, or were being made, in the roadbed or rails, further than to put new ties, instead of letting the old ties remain under the rails at the switches.
The following is the situation as appears in the testimony of Mr. McGawan, the foreman:
"I had charge of putting in the interlocking system. It is in general use all over the country at railway crossings and intersections. It was necessary in putting in this interlocker for us to first install the interlocker in the tower. We (had) built concrete for the pipeline and (had) ran a pipeline on the concrete foundation to all the switches. The signal foundations were all made in Marshall. We had done lots of work on the switches such as putting ties under the pipe plates, erecting signal wire, lights and cables. The interlocker was not connected up with the switch points. The switches were not put into service on account of the signals. You could not work them without the signals. Everything was put up so that you could have connected up the switches, but they were not connected up so that you could use the levers. They were not actually connected. We had not used it and it was not ready to use. The electricity had not been installed. In the tower house all of the electrical appliances had been put in. We were still installing them in the tower house. We were putting in the signals to be used in connection with the interlocker. The man who operated the interlocker also operated the signal lights. The signal lights had not been put in use. We were putting in the concrete foundations for the signal mast or pole when Mr. Kelly was hurt. The mast or pole was to be twelve feet high. That light had not been completed, The wire was on the ground but was not there at this point — all that had to be done to connect the physical mechanism of the various switches and the tower house at the time Mr. Kelly was injured was to actually make a physical connection between the ends of the rods and the switches themselves, and tear away the old switch stands that were there. We had all the material there in position to do that, but did not do so until we got the wiring all in and were ready to turn on the lights. We were erecting a block for a foundation for a mast or pole upon which to place the signal light when Mr. Kelly was injured. We were putting in the blocks and erecting the light poles and finishing the wiring from the tower house to each of these signals."
Mr. Clover, the signalman, testified:
"This electrical system was completed and put into operation about two weeks after Mr. Kelly was injured, I would guess. It was for the purpose of controlling the movement of trains in and through the Alexandria terminal and yard."
Mr. Kelly was injured while and during the laying of the foundation for the signal pole near the point where the Texas Pacific and the Missouri Pacific track crossed. All of the facts above stated appear without dispute.
At the time of the injury, a concrete block weighing about 7,000 pounds was being moved by the use of a tripod to set as a foundation for the electric light or signal pole. He and six other members of his crew, under the direction of the foreman, were placing in position this concrete block. The block had been brought opposite the place where it was to be set on a push car, and had been lifted from the push car by means of a tripod onto the ground alongside the track. By means of this tripod and its appurtenant tackle, the crew were endeavoring to lift this block from the ground and, by degrees, push it over towards the south and into an excavated place made in which to set it. The foreman testified:
"At the time the accident occurred, Mr. Kelly was on top of the block. I asked him to get up there to let it down when we got ready to let it down in place. The block would twist and another man and I were holding the block in shape, parallel with the track. We were holding the block when it fell. The other men with the rope were pulling it over that way (indicating). We had to swing it with the rope in order to pick it up. I told the men to do that. They had the rope and were pulling it over that way; it was being pulled gradually. I don't remember what I was saying at the time. The legs of the tripod was safe, one nest to the rail of the Missouri Pacific track, and the other two next to the dump on the lower side. When I set the legs I thought it a perfectly safe location. We had picked up the block and had all the weight on the tripod before we made a move with it. I thought it safe; it had been all the time. We had dug out a place to make it level. While I was trying to straighten out the block, one of the boys said, `Look out, it's turning over!' I ran around and hollered to Mr. Kelly to Jump down and he said he couldn't get down. It occurred suddenly, before we could do anything. Mr. Kelly went down with the block and his leg was broken."
Mr. White testified:
"Mr. McGawan instructed the men to take the block and to hoist it. He instructed them to lower the block and remove the tripod. He also superintended the location of the legs of the tripod. * * * The pulleys were connected up with the block under Mr. McGawan's direction. After the chains were connected we started to raise the block. Before we started to raise the block, Mr. Kelly got on top of the block and started to manipulate the chain by which the block was to be raised. Mr. McGawan told him to get upon the block. The block was then raised clear of the ground. When we first started to raise it, it drug the ground until right under the tripod, then it was raised enough to clear the ground. After the block was clear of the ground, Mr. McGawan told us to get a rope and put around it. We carried the rope down the dump and it was around the north side of the block. Each end of the rope went down the dump. The dump was about fifteen feet high. When we got down there three men were on each side of the rope pulling and Mr. McGawan was on the north side pushing on the block. He was saying, `Pull, boys, pull!' and we were pulling. First thing we knew, we had pulled the same over and it was unbalanced. Mr. McGawan was still telling us to pull when the thing started over. When the thing started over everybody who could run, ran. Mr. Kelly was not in a position to run. He got tangled up with the chains and he went on down with the block," etc.
As testified by the witness E. S. Braham:
"The outfit fell because of the natural result of the pushing and pulling on that block and chain, and the third leg of the tripod became unbalanced, there was nothing to anchor it. As the block was being moved it would have been necessary, in order to have pulled the tripod poles over, to move it far enough (so) the top of the tripod would pass the center of gravity — until the weight unbalanced it. It would have been necessary to have moved the block past the center of the top of the block in order to unbalance the tripod. The weight of the block was about 7,000 pounds."
It is unnecessary to set out the evidence in detail. There is evidence tending to show that the fall of the block was due either (1) to an accident of merely moving it beyond the center of gravity or (2) of being pushed and pulled in a way and in such position as to cause the unanchored leg to give way. The petition alleged, after setting out that the appellee was working in a crew under the direction and control of the foreman, viz.:
"(4) That other employees in said gang other than defendant and the plaintiff whose names are known to the defendant and unknown to the plaintiff, or some one of them, negligently pulled and pushed the said block in such position and way as to unbalance, upset and cause the said tripod to give way and permit the said block to fall, thereby inflicting upon the plaintiff the said injuries."
It is further alleged, viz.:
"That the said block was caused to fall and the said injuries to be inflicted upon the plaintiff by reason of the negligence of the defendant, its agents and employees in some one or all of the ways set forth herein."
The ground of negligence submitted to the jury was:
"If you shall believe, from a preponderance of the evidence, that on June 26, 1928, while the gang with which the plaintiff was working was endeavoring to place the concrete block in position for use, that the foreman of the said gang negligently pushed or caused the said block to be pulled in such position and way as to unbalance, upset, and to cause the said tripod to give way and permit the said block to fall, and that as a direct result thereof, the said block struck and injured plaintiff, then you will find in favor of the plaintiff, unless you find against him under other written instructions given you."
A verdict was authorized in favor of the defendant upon the finding that the plaintiff's injury was caused by an unavoidable accident or through assumed risk. Another issue submitted to the jury was whether or not the plaintiff was employed in interstate commerce at the time he was injured.
The following agreement was made in the trial of the case, and the case was tried on such agreement, viz.:
"It is agreed by and between the plaintiff and the defendant in this suit that the plaintiff seeks his recovery herein entirely under the provisions of the federal Employers' Liability Act, and not under the common law or any statutory law of the State of Texas or the State of Louisiana."
In deference to the verdict of the jury, we find that the appellant was guilty of negligence as alleged, proximately causing injury to the appellee, and that the amount of the damages recovered in the judgment was warranted by the evidence.
King, Mahaffey, Wheeler Bryson, of Texarkana, for appellant.
S. P. Jones and Franklin Jones, both of Marshall, and J. A. R. Moseley, Jr., of Texarkana, for appellee.
The appellant submits the proposition, as controlling the suit based exclusively upon the Federal Employers' Liability Act ( 45 US CA §§ 51- 59), that the appellee was not injured while engaged in interstate commerce. In support of the proposition, it is pointed out that the evidence shows without dispute that the interlocking system was not in operation or use, and had not been completely put in position and place for operation and use as an instrumentality in interstate commerce, but the switches and appurtenant signal lights at the crossing were, when the appellee was injured, being operated by hand the same as before. The main purpose of this interlocking system of signals was, as fully shown, to take the place and be the substitute of the hand-operated switches then in use. The switches and appurtenant signal lights were not designed to be used and operated severally, but they were to constitute a complete interrelated system of operation of trains over the already laid track and roadbed. The rods, wires, and plates which constituted a working part of the new system were to be, and mostly were, attached to, and connected with, the rails then in the existing track. There was not to be any change in the roadbed, track, or rails in order to have the new mechanism tied to it for operation. In such situation, it is believed that the system or plant must be regarded as intended as a substitution of existing switch facilities and signal system in the nature of purely track equipment of the already laid and existing railway track. The factual elements must be considered that the rails in the existing track were to be utilized in connection with the new signal system, and such rails also entered into, and formed a part of, the existing roadbed. Therefore the fact that the locking mechanism, which was an inseparable part of the system being installed for the safe and efficient operation of trains over the tracks, was to be and mostly was tied to and connected with the rails of the existing roadbed, would operate to classify the work being done at the time of the injury as work done on an instrumentality actually used in interstate commerce at that time, although the interlocking system of signals had not been completely put in position and place for operation. The work was certainly in close and not remote relation to interstate traffic. The tracks and rails and roadbed already laid were, as shown, actually used and being used at the time of the injury daily by many trains in interstate business, carrying through passengers and freight. The authorities point to the conclusion that the plaintiff under the facts stated was entitled to recover under the federal act. Pederson v. Railway, 229 U.S. 146, 33 S.Ct. 648, 57 L.Ed. 1125, Ann.Cas. 1914C, 153; Kinzell v. Rwy., 250 U.S. 130, 39 S.Ct. 412, 63 L.Ed. 893; Philadelphia, B. W. Rwy. v. Smith, 250 U.S. 101, 39 S.Ct. 396, 63 L.Ed. 869; Oregon Short Line Rwy. v. Gubler (C.C.A.) 9 F.2d 494 (certiorari denied 273 U.S. 709, 47 S.Ct. 100, 71 L.Ed. 851); Central Rwy. Co. of New Jersey v. Monahan (C.C.A.) 11 F.2d 212.
The appellant contends that it is not liable because (1) there was no negligence, and (2) there was assumption of risk. It is believed the questions so presented became one of fact for the jury's determination. There is, we think, evidence tending to show and authorizing the inference of negligence upon the grounds submitted to the jury in the court's charge. The work the appellee was engaged in was work more or less of a hazardous character, as it required him to be upon the hoisted block, and in undertaking to do the work he assumed the risk incident to the employment in which he was engaged, but he did not assume dangers resulting from the negligence of others. Therefore neither point made in the assignment of error can be sustained as a pure matter of law.
The question of whether or not the appellee was engaged in interstate commerce at the time of his injury became in the record one for decision by the court and not the jury, and therefore any charge given to the jury, or finding by the jury, becomes immaterial of consideration in the appeal, because injury could not be legally predicated thereupon.
We have given full consideration of all the assignments of error presented, and think they should be overruled.
The judgment is affirmed.