GULF, C. & S. F. Ry. Co. v. HILL et al.

(Supreme Court of Texas, June 23, 1902.)

[69 S. W. Rep. 136.]

Injury to Switchman-Negligence-Giving Kick Signals-CustomInstruction.

In an action against a railroad company for the death of a yard switchman, alleged to be due to the negligent giving of a "kick" signal while he was uncoupling the car about to be kicked, an instruction that, if there was a general custom in defendant's yard, then, unless plaintiff established that the signals given were not the proper and customary signals, the jury should find for defendant, without regard of any other issue, was properly refused, as requiring plaintiff to prove that the signals were not customary, regardless of whether they were reasonably safe, and of whether deceased knew of the custom relied on. Same-Assumption of Risk-Contributory Negligence-Plaintiff's Evidence.

Where, in an action for the death of a servant, plaintiff's evidence is such as to require an instruction on contributory negligence and assumed risk, even if defendant has offered no evidence, but not such as to authorize an instruction that such defenses were established as a matter of law, an instruction that the burden of proving such defenses is on defendant is improper, as tending to lead the jury to believe that they should consider only the evidence offered by defendant on such issues.

Certified questions from court of civil appeals of First supreme judicial district.

Action by Isabella Hill and another against the Gulf, Colorado & Santa Fe Railway Company. Judgment in favor of plaintiffs, and defendant brings error to the court of civil appeals, which certifies questions to the supreme court. Questions answered.

J. W. Terry and Chas. K. Lee, for plaintiff in error.

Lovejoy, Sampson & Malevinsky, for defendants in error. BROWN, J. The court of civil appeals of the First supreme judicial district has certified to this court the following statement and questions:

"This suit, which is now pending before us on motion for rehearing, was brought by Isabella Hill, for herself and as next friend of her two minor children, to recover of the defendant damages for the alleged negligent killing of her husband, J. H. Hill. Judgment was for plaintiff in the court below, and the defendant railway company brought the cause here by writ of error. We set out fully the facts found by us from the record, because such a statement is necessary to a comprehension of the questions hereinafter propounded, in their relation to the entire case:

"Plaintiffs allege as a basis for recovery that the deceased was a switchman in the employ of defendant, and was, at the

Gulf, C. & S. F. Ry. Co. v. Hill

date of the accident which caused his death, engaged, with other members of a switching crew, in doing some switching in the yards at Galveston; that it was the purpose of those thus engaged to kick the end car of a string of cars they were handling into a side track, without following it in with the rest of the train; that, in order to do this, the train, as it backed in the direction of the switch, was to be slowed down to a slow rate of speed, whereupon it became the duty of deceased to uncouple the end car; that, in doing so, it was proper for no one to give the kick signal except deceased; that he undertook to uncouple the cars, and while doing so his fellow switchman, without warning him, negligently gave the kick signal, in response to which the speed of the train was suddenly and violently increased, whereby he was knocked down, run over by the cars, and killed; that the signal which caused his death was given by one Fewell, and that his coemployees were negligent in taking the signal from Fewell, but should have waited until the deceased had signaled that the cut had been safely made. In addition to the general denial, the defendant pleaded specially that deceased's injuries and death resulted from one of the risks ordinarily incident to his employment; pleaded his contract of employment, in which he acknowledged himself familiar with defendant's rules; agreed to look to his coemployees for all necessary information looking to his safety; agreed that in every case of doubt he would take the safest course; that he would avoid taking risks, would familiarize himself with the rules, conform his acts to their requirements, and report all infringements thereof. Such of the rules as are supposed to be applicable are pleaded, but it is not necessary to set them out in this connection. It was further averred in defense that the kicking of the car had been prearranged, and the programme fully understood by the deceased; that he knew it would be his duty to uncouple the car, that same would be kicked, and that it was his duty to give the kick signal before uncoupling, or see that it was given; that the signal that was given was usual and customary, and one that deceased knew would be given in doing the work; that such was the usual and customary way of doing the work in the Galveston yards, wherefore it is alleged the danger therefrom was one of the ordinary risks of the employment; that the cars were equipped with automatic couplers, which rendered it unnecessary for him to go in between the cars, or to expose any part of his body between them; and that if he did so he assumed the risk. It was also charged that he was guilty of contributory negligence in exposing himself between the cars without either having given the signal, or knowing it had been given; that, though expressly warned by the rules to look out for signals, take no risks, etc., he failed to take these precautions, and therefore was the cause of his own injury.

"J. H. Hill, the husband of the plaintiff in this case, was on

Gulf, C. & S. F. Ry. Co. v. Hill

March 9, 1900, an employee of defendant, in the capacity of switchman, and between five and six o'clock on the afternoon of the day named, while engaged in switching in the yards of defendant at Galveston, he was run over and killed by defendant's train. At the time of the accident he was engaged in switching, and was, as expressed by the witnesses, 'working in the field.' The crew had been out in the west yards, near the bay bridge, in the city of Galveston, and had come back from the west with a string of 25 or 30 cars,-mostly box cars; the engine being at the rear end of the train, backing it up. The front car of the train as it backed was a flat car, loaded with lumber, and the next two cars were cinder cars. Deceased rode from the west yards to the middle yards, near Forty-Second street, on the front end of the flat car, as they backed up. The other members of the crew were John McCarty, foreman; C. A. Hooks, another switchman; Chris. Miller, engineer; and Thomas Gillam, the fireman. In coming from the west yards, the train of cars was propelled at a speed of about ten miles an hour, but, when it neared a point designated as 'Fogarty Switch,' it was slowed down to a speed of two or three miles an hour for the purpose of allowing Hill to alight, throw the switch for 'rip track No. 2,' on which it was intended to place the end car, and to uncouple the car so it could be kicked in. Fewell, the night yard master, was near the switch, and receiving from McCarty a signal as to what was intended, threw the switch, and Hill proceeded at once to uncouple the car. McCarty saw him approach the point in the train where the uncoupling was to be made, and reach out as if to take hold of the uncoupling lever, but at that point he ceased to be in view of McCarty. No witness testifies that the acts of Hill were seen after that, though the track at that point was straight. Fewell, who was then standing at the switch, and had thrown it for the side track, and who was a considerable distance from Hill (some of the witnesses placing him as much as 75 yards away), gave the kick signal. This was received by McCarty, who transmitted it to the engineer, who obeyed it without knowing the exact position of Hill, In response to the kick signal, the speed of the train was increased from two or three to seven or eight miles an hour. It was at once discovered that Hill was under the train, and Fewell gave the emergency stop signal. The train was promptly stopped. The car as in fact uncoupled, and, as a result of the response to the kick signal and the increased speed of the train, rolled into the side track as intended. Hill was found between the rails, with his arm and leg crushed,two of the cars having passed over him, and he died a few hours later. He was a sober, experienced, and efficient switchman, and had been at work in defendant's yards at Galveston for several years. No one saw Hill fall, and there is no direct testimony as to how he fell, his position just before the fall, or what caused it. No one testifies whether he went in between

Gulf, C. & S. F. Ry. Co. v. Hill

the cars wholly or partially in his effort to uncouple. No one testifies whether the lever worked hard or easy at that moment. An inspection afterwards showed that the coupling apparatus was in good condition and worked easy. The coupling apparatus was automatic; the Santa Fe car being equipped with a Trojan coupler, and the T. & N. O. car with a Janney coupler. Each had a lever extending to near the side of the car, which, when in perfect order, could be raised with the hand without going between the cars; but the evidence was conflicting as to whether it could be raised without leaning toward the cars, and putting the arm and part of the body in such a position as to be struck if the speed of the train was suddenly increased. There was also testimony to the effect that frequently coupling apparatus in apparently perfect condition would work hard, and require considerable force to lift the lever, and that in such case more of the body would be put between the cars in the effort to lift it. The evidence is practically undisputed that the kick signal was given and obeyed about the time Hill undertook the uncoupling, and that no one knew his position or just what he was doing at that time. It is also true that the signal was given without warning to him, and without knowledge that the uncoupling had been safely accomplished. It was shown that, if the slack of the train was extended, the cars could not have been uncoupled, as the tension would hold the pin tightly in place, and that a back-up signal was necessary in order to loosen the tension; but the evidence is conflicting as to whether the slowing of the train had not effected this. There is a difference between a back-up signal and a kick signal. The backup signal means that the engineer shall back the train. A kick signal means that the speed shall be sufficiently increased to throw the cut off into the side track by the force of the increased momentum, without following the car into the switch with the rest of the train. The signal given by Fewell and transmitted to the engineer was a kick signal. Hill knew that the car was to be kicked when cut off, and that the kick signal was necessary, and should be given by some one. The main point of conflict in the evidence is whether his coemployees should not have waited for him to give it, or notified him that it would be given by another than himself. Another point of conflict is whether, if another gave it, he should have appraised himself that Hill was safe before he gave it. Defendant adduced evidence to show that it was the custom in the Galveston yards of defendant to give the kick signal without reference to the position of the man doing the uncoupling, and that Hill knew of this custom, and should have expected the signal and increased speed of the train, and should have been prepared for it. There was evidence, also, that this was the general method and custom in switching with automatic couplers. On the other hand, there was evidence that the general method was to await a signal from the

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