252 S.W. 268 | Tex. App. | 1923
Lead Opinion
(after stating the facts as above). By the terms of the “safety appliance” statute applicable (article 6710, Vernon’s Statutes), it was unlawful for appellant—
“to haul or permit to be hauled or used on its line of railroad within the state of Texas, any locomotive, tender, car or similar vehicle employed in moving intrastate traffic within the said state which is not equipped with couplers, coupling automatically by impact, and which can be coupled and uncoupled without the necessity of men going between the ends of locomotives, tenders, cars and similar vehicles.”
As we understand the testimony it was amply sufficient to support the finding of the jury that the cars were not equipped with couplers which could be coupled without the necessity of any one going between them. That finding showed that appellant had violated the statute, unless it should be construed, as appellant insists it should be, as requiring no more of it than that the cars should be equipped with couplers which would coupleautomatically by impact after the couplers had been properly adjusted by some one going between the cars for that purpose. It is settled, we think, contrary to the contention of appellant, that the'statute, like the one enacted by Congress (article 8606, U. S. Oomp. Stat.), means what its language imports,. to wit, that cars used by a railway company must be equipped with couplers which will couple automatically by impact
The finding that the violation by appellant of the statute was a proximate cause of the injury to appellee was abundantly supported by testimony. Appellant’s insistence to the contrary seems to be predicated upon the erroneous view that it appeared that appellee himself was guilty of negligence in placing his foot against the coupler on the cotton car, which was the sole cause of the injury he suffered. He may have been negligent in the respect stated, as the jury found he was, but certainly, if he was, his negligence, as the jury further found, was not the sole cause of the accident. If it should be said that his foot would not have been caught between the couplers and mashed if he had not undertaken to shove the coupler as he did, it should also be said that there would have been no occasion for him to have used his foot in shoving the coupler, and presumably he would not have done so, had the couplers on the cars been such as the law required appellants to have on them. Freeman v. Swan (Tex. Civ. App.) 143 S. W. 724; Lancaster v. Fitch (Tex. Sup.) 246 S. W. 1015; Ry. Co. v. Hosey (Tex. Civ. App.) 247 S. W. 327; York v. Ry. Co., 86 Ark. 244, 110 S. W. 803.
That appellee was guilty of negligence which, concurring with appellant’s violation of the law, caused the accident, was not available to the latter as a defense against the consequence to the former of its violation of the statute. Article 6649, Vernon’s Statutes. Nor was the defense of “assumed risk” available to it. Article 6650, Vernon’s Statutes. Hence it is not necessary to determine contentions of appellant based upon testimony showing, it asserts, that in going between the cars and shoving the coupler as he did appellee violated rules it hád promulgated and which it was his duty to observe.
In his charge to the jury the trial-court defined “proximate cause” as meaning “that which naturally produces the injury complained of and without which it would not have occurred.” Appellant did not object to the instruction at the time it was given, but insists here that it was erroneous, and complains of the refusal of the court to give to the jury a charge it requested defining the term. The instruction given was not affirmatively erroneous (Ry. Co. v. Heard, [Tex. Civ. App.] 91 S. W. 371); but if it was we think the error in giving it would not require a reversal of the judgment; for, it being established, as determined by the jury, that the couplers would not couple by impact without the necessity of any one going between the cars to adjust them, we think it appeared as a matter of law, there being no testimony suggesting it may not have been, that appellant’s violation of the statute was a proximate cause of the injury to appellee. Ry. Co. v. Drake (C. C. A.) 276 Fed. 393; Ry. Co. v. Hosey (Tex. Civ. App.) 247 S. W. 327.
Other contentions presented in appellant’s brief and not disposed of by what has been said are also overruled.
There is no error in the judgment, and it is affirmed.
Lead Opinion
By the terms of the "safety appliance" statute applicable (article 6710, Vernon's Statutes), it was unlawful for appellant —
"to haul or permit to be hauled or used on its line of railroad within the state of Texas, any locomotive, tender, car or similar vehicle employed in moving intrastate traffic within the said state which is not equipped with couplers, coupling automatically by impact, and which can be coupled and uncoupled without the necessity of men going between the ends of locomotives, tenders, cars and similar vehicles."
As we understand the testimony it was amply sufficient to support the finding of the jury that the cars were not equipped with couplers which could be coupled without the necessity of any one going between them. That finding showed that appellant had violated the statute, unless it should be construed, as appellant insists it should be, as requiring no more of it than that the cars should be equipped with couplers which would couple automatically by impact after the couplers had been properly adjusted by some one going between the cars for that purpose. It is settled, we think, contrary to the contention of appellant, that the statute, like the one enacted by Congress (§ 8606, U.S.Comp.Stat.), means what its language imports, to wit, that cars used by a railway company must be equipped with couplers which will couple automatically by impact *270
without the necessity of any one going between them to adjust the couplers or for any purpose. Ry. Co. v. Wagner (Tex.Civ.App.)
The finding that the violation by appellant of the statute was a proximate cause of the injury to appellee was abundantly supported by testimony. Appellant's insistence to the contrary seems to be predicated upon the erroneous view that it appeared that appellee himself was guilty of negligence in placing his foot against the coupler on the cotton car, which was the sole cause of the injury he suffered. He may have been negligent in the respect stated, as the jury found he was, but certainly, if he was, his negligence, as the jury further found, was not the sole cause of the accident. If it should be said that his foot would not have been caught between the couplers and mashed if he had not undertaken to shove the coupler as he did, it should also be said that there would have been no occasion for him to have used his foot in shoving the coupler, and presumably he would not have done so, had the couplers on the cars been such as the law required appellants to have on them. Freeman v. Swan (Tex.Civ.App.)
That appellee was guilty of negligence which, concurring with appellant's violation of the law, caused the accident, was not available to the latter as a defense against the consequence to the former of its violation of the statute. Article 6649, Vernon's Statutes. Nor was the defense of "assumed risk" available to it. Article 6650, Vernon's Statutes. Hence it is not necessary to determine contentions of appellant based upon testimony showing, it asserts, that in going between the cars and shoving the coupler as he did appellee violated rules it had promulgated and which it was his duty to observe.
In his charge to the jury the trial court defined "proximate cause" as meaning "that which naturally produces the injury complained of and without which it would not have occurred." Appellant did not object to the instruction at the time it was given, but insists here that it was erroneous, and complains of the refusal of the court to give to the jury a charge it requested defining the term. The instruction given was not affirmatively erroneous (Ry. Co. v. Heard, [Tex. Civ. App.]
Other contentions presented in appellant's brief and not disposed of by what has been said are also overruled.
There is no error in the judgment, and it is affirmed.
The motion is overruled.
Rehearing
On Appellant’s Motion for Rehearing.
Appellant insists that its contention that the defect in the couplers was not a proximate cause of the accident was not based alone on the view that negligence on the part of appellee was the sole cause thereof, but also on the view that at the time the accident occurred appellee, having adjusted the couplers, was “engaged in an entirely distinct and different undertaking, to wit, that of lining up the drawbar, and that his injuries were due to the fact that he lined up the drawbar with his foot while the cars were in motion”; and insists further that this court did not determine its contention so far as it was predicated on the latter view. We were of the opinion, and are yet, that “draw-bars,” as was said by the Illinois Supreme Court, “are a part of the coupling device” (Davis v. Ry. Co., 294 Ill. 355, 128 N. E. 539), and therefore, if it was necessary to go between the cars to “line up” drawbars of the cars in question before the couplers would couple automatically by impact, that the contention was not tenable (Alabama & V. R. Co. v. Dennis, 128 Miss. 298, 91 South. 4).
The motion is overruled.
