MISSOURI PAC. R. CO. v. JONES, 76 S.W.2d 1044

SHARP, Judge. This is an action by Franklin Jones, administrator of the estate of J. L. Peace, against the Missouri Pacific Railroad Company, for damages caused by the fleath of J. L. Peace, an employee of the railroad com-' pany, by reason of the collision between two trains on the main line near the town of Norphlet, Ark., and a judgment for such damages was recovered against the railroad company. The judgment of the trial court was affirmed by the Court of Civil Appeals at Texarkana. 38 S.W.(2d) 836. This is the second appeal of this case, and we refer to the former opinions rendered. (Tex. Civ.

App.) 12 S.W.(2d) 1050 and (Tex. Com. App.) 24 S.W.(2d) 32. We copy from the opinion of the Court of Civil Appeals the following statement: “At the time of the' collision, Peace was one of the appellant’s engineers and in charge of engine No. 95, which was moving south pulling three tank cars. Engine No. 1278 was backing north on the same track, pulling several box cars attached to its front end. Both trains were intending to take a siding in order to allow another train to pass which was due'within a few minutes. The two trains above mentioned came together on a curve in the track. As a result, Peace was killed.

He left a wife and some minor children. This suit was filed by Franklin Jones as administrator of the estate of Peace, to recover damages. It is conceded that the colliding trains were engaged in interstate commerce. * * * “The proof shows that at the time the collision occurred a brakeman was riding in the engine cab with Peace (the engineer) and the fireman.

The administrator charged negligence on the part of the crew operating engine No. 1278, and also charged negligence on the part of the fireman and brakeman who were in the cab with Peace, in failing to keep a lookout for trains approaching from the opposite direction. Among the regulations adopted and promulgated by the appellant was rule No. 93, which is as follows: “ ‘Rule 93. Within the yard limits the main track may be used, protecting against first-class trains.

Second and inferior class and extra trains must move within yard limits prepared to stop unless the main track is seen or known to be clear.’ “It is admitted by both parties to this suit that the above rule was applicable to both of those trains at the time the collision occurred. They were of the same class and were moving on the main line within the yard limits of Norphlet. It was the duty of each crew to observe.and obey that rule. “On the special issues submitted the jury found the following facts:

(1) The operatives of engine No. 1278 violated rule 93 at the time of and just before the collision; (2) which violation was approximate cause of the collision; (3) that the deceased, Peace, just before and at the time of the collision was not operating engine No. 95 in violation of rule 93; (4) that the fireman or brakeman on the engine of J. L.

Peace was in such position for a sufficient length of time to have discovered, by the exercise of ordinary care, the presence of engine No. 1278 in time to have warned Peace in time for him to have averted a collision and resulting death to himself by the exercise of ordinary care and the use of the means at his command; (5) that such person on the fireman’s side of the engine failed to exercise ordinary care to warn Peace of the presence of engine No. 1278 in time for him to have, in the exercise of ordinary care, avoided injury to himself; (6) which negligence was the proximate cause of the injury and death of Peace; (7) that Peace did not assume the risk of the collision under the conditions and circumstances in evidence; (8) the jury assessed the damages at 835,000.” The rights and liabilities of the pai’ties involved in this suit are controlled by the Federal Employers’ Inability Act of April 22, 1908, c. 149, § 1, 35 Stat. 65, Code, title 45, § 51 (45 USCA § 51).

The act provides that every common carrier by railroad, while engaging in interstate commerce, “shall be liable in damages to any person suffering injury while he is employed by such carrier in such commerce, or, in case of the death of such employee, * * * for such injury or death resulting in whole or in part from the negligence of any of the officers, agents, or employees of such carrier. * * * ” The Supremo Court of the United States, in construing the foregoing act, has held that a recovery for damages for an injury to or death of an employee while engaged in interstate commerce will not be permitted when the negligence of the employee was the sole or primary cause of his injury or death.

Davis v. Kennedy, 266 U. S. 147, 45 S. Ct. 33, 69 L. Ed. 212; Frese v. Chicago, B. & Q. R. Co., 263 U. S. 1, 44 S. Ct. 1, 68 L. Ed. 131; Unadilla Valley Ry. Co. v. Caldine, 278 U. S. 139, 49 S. Ct. 91, 73 L. Ed. 224; Great Northern Ry. Co. v. Wiles, 240 U. S. 444, 36 S. Ct. 406, 60 L. Ed. 732; St. Louis Southwestern R. Co. v. Simpson, 286 U. S. 346, 52 S. Ct. 520, 76 L. Ed. 1152. It is again contended by the railroad company, as it was contended on the former appeal [(Tex. Com.

App.) 24 S.W.(2d) 32], that it should be held as a matter of law that no recovery could be sustained in this case because the negligence of Peace, the engineer, was the sole cause of his injury and death. We do not agree with this contention. If it appeared from the record that the negligence of Peace was the sole and direct cause of his death, we would hold, as a matter of law, that there was no ground for recovery. The pleadings and evidence raise certain issues of fact. Many issues were submitted to the jury. The issue of. the sole cause of injury to Peace was not submitted to the jury.

The jury found that the operatives of engine No. 1278 violated rule 93; that the fireman or brakeman on Peace’s engine No. 95 at the time of the collision with engine No. 1278 was guilty of negligence; and that such negligence of the operatives of engine No. 1278 and the fireman or the brakeman on engine No. 95 was the proximate cause of Peace’s injury. The jury also found that Peace was not operating engine No. 95 at the time of the collision in violation of rule 93 and that he did not assume the risk of the collision.

The rule has been announced that it is not a complete defense to an action for damages to an employee engaged in interstate commerce for the railroad company to prove that the negligence of the injured employee was a contributing cause co-operating with the negligence of other employees. Union Pac. R. Co. v. Hadley, 246 U. S. 330, 38 S. Ct. 318, 62 L. Ed. 751; Illinois Central R. Co. v. Skaggs, 240 U. S. 66, 36 S. Ct. 249, 60 L. Ed. 528; Brock v. Mobile & O. R. Co., 330 Mo. 918, 51 S.W.(2d) 100, writ of certiorari denied 287 U. S. 638, 53 S. Ct. 87, 77 L. Ed. 552; Hawthorne v. International-Great Northern R.

Co. (Tex. Civ. App.) 63 S.W.(2d) 243, writ denied. Under the state of this record, we do not think it could be held as a matter of law that the negligence of Peace was the sole cause of his injury and death. It was an issue of fact to be determined. Missouri Pacific R. Co. v. Jones (Tex. Com. App.) 24 S.W.(2d) 32; Grand Trunk Western R. Co. v. Lindsay, 233 U. S. 42, 34 S. Ct. 581, 58 L. Ed. 838, Ann. Cas. 1914C, 168; Lancaster v. Pitch, 112 Tex. 293, 246 S. W. 1015, 1017; Dallas Ry. Co. v. Warlick et al. (Tex. Com. App.) 285 S. W. 302. The judgment of the Court of Civil Appeals is affirmed.

Opinion adopted by the Supreme Court Nov. 28, 1934.