Galveston, Harrisburg & San Antonio Railway Company v. T. T. Adams, 94 Tex. 100

BROWN, Associate Justice. On the 25th day of March, 1898, T. T. Adams was in the employ of the Galveston, Harrisburg & San Antonio Railway Company as conductor on one of its freight trains, and received injuries under the circumstances hereafter stated. The train on which he was employed arrived at Houston, and, having entered the yards, stalled on a grade. The train was standing upon a curve and persons engaged at either end could not see those engaged at the other end of it.

The foreman of a switch crew employed in the yard by the plaintiff in error attached a switch engine to the front of the engine of that train to aid it in getting over the grade. It was proved, and, so far as we have been able to see, is undisputed, that it was the custom in that yard for a switch crew to go to the aid of a train under similar circumstances, and, by attaching the switch engine to the locomotive or to the rear of the train, as circumstances required, to assist it into the yards.

It was also proved that it was the custom of conductors upon that railroad under similar circumstances to call upon the engineer of another train, if convenient, to aid the stalled train in passing the grade. The evidence upon this point can not be said to be undisputed, but it was sufficient to justify a finding of the jury in favor of such authority and custom. A freight train belonging to the San Antonio & Aransas Pass Railway Company was upon the same track, behind the train on which Adams was conductor, using that track by agreement between the companies.

The latter train could not proceed until Adams’ train had passed over the grade. Adams, not knowing that the switch engine was attached to the front of his train, called upon the engineer of the train behind him to couple to the rear of his caboose and to aid him by pushing his train up the grade. The coupling was made, the signal given, and both engines seemed to move at the same time, causing the train to move forward for several car lengths, when suddenly the train on which Adams was came to a halt, which caused the engine behind the caboose to run into it and to break the platform of the caboose off.

Adams was, at the time, upon the platform of the caboose trying to draw the pin by which the following" engine was coupled to his caboose, and when the platform was broken, his leg was caught between the engine and the caboose and so injured as to make amputation necessary. The timbers of the platform were decayed, which caused it to break in the collision.

The sudden stopping of the train of which Adams was conductor was caused by the engineer applying the emergency air brake, which was forbidden by the rules of the company, except “to prevent a wreck or derailment or to save life or property.” There is no evidence that a wreck or derailment was impending or that life or property was endangered.

It was claimed by the defendant below and is urged here by assignment that Adams had no authority over the train at the time and place when he received his injury, but that the same was, by the rules of the company, in charge of the yardmaster; but upon this issue the evidence was conflicting and sufficient to have sustained a verdict either way. The case was tried before a jury and judgment rendered for the plaintiff, Adams, for $15,000, which was affirmed by the Court of Civil Appeals.

The writ of error was granted in this case upon the assignment based on the following charge: “You are charged in this connection, however, that if you find that there was negligence on the part of those operating the San Antonio & Aransas Pass Railway Company’s train, but that the injury, if anjq was the joint result of such negligence on the part of those operating the San Antonio & Aransas Pass train, and of such negligence, if any, of the engineer or fireman of the defendant, as under the fifth paragraph of the charge would authorize a recovery, or was the joint result of negligence on the part of the San Antonio & Aransas Pass Railway Company, or those operating its train, and of such defects of the platform or caboose, if any, as you have been instructed would, under the second paragraph of this charge, authorize a recovery, then, should you so find, you are instructed that in such an event the fact that negligence on the part .of the San Antonio & Aransas Pass Railway Company or its employes co-operated in causing the injury, would not be a defense to the defendant.” We were of the opinion that the plaintiff should be held responsible for the negligence, if any, of the persons he called to his aid, if such negligence contributed to the injury that he received.

We do not intend to intimate an opinion as to what would be the rule in such case, for, upon a careful examination of the facts, we find no evidence of any negligence oh the part of the servants of the San Antonio & Aransas Pass Railway Company. There being no negligence by those servants, the charge could not operate to the injury of the defendant.

The plaintiff in error presents, in different forms, the proposition that a servant who, in discharging his duties, disobeys the regulations of his master, is guilty of negligence per se, and, if injured and the act which violates such rules contributes to the injury, no recovery can be had. This rule would give to regulations of the .master the force of statutory enactments. We do not understand the law to be consistent with that contention.

If a violation of a rulé shows conclusively that the servant can not recover under the facts of the case, the question of contributory negligence becomes a question of law to be decided by the court. If, however, under the facts of the particular case, there might be a phase in which the servant would be justified or excused in disregarding the rule of the company, then it becomes a question for the jury to determine whether such act is negligence; that is, whether, under all the circumstances, a reasonably prudent person would have done as the plaintiff in the case did. Dunlap v. Railway, 130 U.

S., 649; Railway v. Sweeney, 36 S. W. Rep., 800; Bonner & Eddy v. Bean, 80 Texas, 155. The general rule of law is that contributory negligence is a question of fact to be found by the jury, and the facts of this case do not take it out of that rule. We do not think it necessary to discuss the different assignments embraced in the application for the writ of error; we find no error in the judgment, and it will be' affirmed. Affirmed.