San Antonio & Aransas Pass Railway Co. v. Wagner

delivered the opinion of the court.

The judgment that is brought under review by this writ of error is the outcome of an action begun in the District Court of Bexar County, Texas, by defendant in error against plaintiff in error, resulting in a judgment in his favor. This was affirmed by the Court of Civil Appeals, a rehearing was denied ( 166 S. W. Rep. 24 , 28), and our writ of error is directed to that court because the Supreme Court of Texas refused to review the judgment.

We shall describe the parties according to their attitude in the trial court. Plaintiff’s petition alleged that on October 18, 1911, he was employed as a brakeman by defendant, a common carrier by railroad engaged in both interstate and intrastate commerce; that defendant had in use in both kinds of commerce a certain engine and a

At the trial the evidence tended to show that plaintiff was engaged in switching at one of defendant’s yards and was riding upon' the footboard at the rear of the engine in order to make a coupling between it and a box car; that at the first impact — to use plaintiff’s words — “ the coupling wouldn’t make; I coupled up against them but it wouldn’t make.” He then signaled the.engineer to draw ahead, and this having been done, he adjusted the knuckle and pin upon the box car, and “I gave the engineer a back-up signal to couple in again, and I got back on the footboard of the engine; when I got on the footboard I looked down and I seen the drawhead on the engine was shifted way over to my side, and I reached up with my left foot to shift the drawhead over so it. would couple, and my right foot slipped on the wet footboard; ” as a result of which his left foot was caught between the drawheads and crushed. He testified that at the first impact the drawhead on the engine was in line with that on the box car, and that the only thing that prevented the coupling at this time was the failure of the pin on the box car to drop. And further:

“When the coupling apparatus of these automatic couplers are in proper condition and they are properly connected, they couple by impact automatically; . . . when the brakeman couples a car he pulls a lever on the outside of the car, that opens the knuckle — -that raises the pin and opens the coupler up, then all he has to do is to give a signal and they back right up. He has nothing to do with reference to fixing the knuckle or anything of that sort.” He testified in effect that 4he coupler was out of order. The Court of Civil Appeals held that so far as this was opinion evidence it was admissible as the opinion of a qualified expert, plaintiff having been employed by defendant as a brakeman for eight years, and being acquainted with the

operation of couplers. A witness called by defendant testified: “These couplers are made to couple automatically by impact — they are supposed to be in such condition as that, so when they come together they will couple without the necessity of men going in between the cars to couple or uncouple, and should be in that condition. If they do not couple with the automatic impact, they are not in proper condition.”

The trial court instructed the jury that if the locomotive and car in question were not equipped with couplers coupling automatically by impact without the necessity of plaintiff going between the ends of the cars, and by reason of this and as a proximate result of it plaintiff received his injuries, the verdict should be in his favor, otherwise in favor of defendant, and that.the burden of proof was upon plaintiff to establish his case by a preponderance of the evidence.

The, Court of Civil Appeals treated the case as coming within the Federal Employers’ Liability Act of April 22, 1908 (c. 149, 35 Stat. 65 ), and the assignments of error in this court and the argument thereon proceed upon that basis. We shall decide the case upon that assumption, although we find nothing in the record to show that, in fact, plaintiff was employed in interstate commerce at the time he was injured. We are asked to take notice of the omission of pleading and proof of the fact as a “plain error” and deal with it, although- not assigned, under paragraph 4 of our Rule 21. We must decline to do this, principally for two reasons: (a) The omission may have been due to an oversight that would have been corrected if the point had been properly raised by the present plaintiff in error in the state courts, (b) Since the Safety Appliance Acts are in any event applicable — ■ defendant’s railroad being admittedly a highway of interstate commerce — whether plaintiff was employed in such commerce or not (Tex. & Pac. Ry. v. Rigsby, ante, pp. 33,

In the Court of Civil Appeals, as in this court, error was assigned upon the action of the trial court in striking out the special defenses. The appellate court held, however, that' under the general denial defendant was at liberty to show all that had been averred in the special defenses respecting the couplers, and that it was permitted to prove all that it offered upon that subject. It is insisted here, and the insistence is many times repeated, that the trial court refused to admit in evidence testimony offered to show that all automatic couplers necessarily require adjustment at times in order that they may operate automatically upon impact, and that the adjustment is accomplished by means of hand levers fitted to the cars and operated by the trainmen without going between the cars; the object being to show that the engine and car

Eliminating, therefore, because unsupported by anything in the record, the insistence that appellant was deprived of the opportunity of presenting at the trial the matters that had been set up in the special defenses, the remaining questions are few and easily disposed, of.

There was sufficient evidence to warrant the jury in finding that the coupler upon the box car or that upon the engine, or both, were in bad repair, and that for this reason they did not measure up to the standard prescribed by the act of March 2, 1893, for such equipment,

That the act requires locomotives to be equipped with automatic couplers, and that its protection extends to men when coupling as well as. when uncoupling cars, are points set at rest by. Johnson v. Southern Pacific Co., 196 U. S. 1 , 15, 18.

It is insisted that neither the original Act nor the amendment precludes adjustment of the coupler prior to or at the time of impact, or treats a drawbar out of alignment as a defect in the automatic coupler, or as evidence that the cars are not equipped with couplers measuring up to the statutory standard. The evidence of bad repair in the automatic equipment was not confined to the fact that the drawbar on the engine was out of line; the fact that the coupling-pin on the box car failed to drop as it should have done at the first impact, and required manipulation in preparation for the. second impact, together with the fact that the draw-bar on the engine was so far out of line as to require adjustment in preparation for the second

It is argued that in actions based upon the Employers’ Liability Act the defendant can not be held liable without evidence of negligence, Seaboard Air Line v. Horton, 233 U. S. 492 , 501, being cited. But in that case, as the opinion shows (p. 507), there was no question of a violation of any provision of the Safety Appliance Act; and in what was said (p. 501) respecting the necessity of showing negligence, reference was had to causes of action independent of that Act. The Employers’ Liability Act, as its § 4 very cleárly shows, recognizes that rights of action may arise out of the violation of the Safety Appliance Act. As was stated in Tex. & Pac. Ry. v. Rigsby, ante, pp. 33, 39, — “A disregard of the command of the statute [Safety Appliance Act] is a wrongful act, and where it results in damage to one of the class for whose especial benefit the statute was enacted, the right to recover thé damages from the party in default is implied.” If this Act is violated, the question of negligence in the general sense of want of care is immaterial. 241 U. S. 43 , and cases there cited. But the two statutes are in pari ma-teria, and where the Employers’ Liability Act refers to “any defect or insufficiency, due to its negligence, in its cars, engines, appliances,” etc., it clearly is the legislative intent to treat a violation of the Safety Appliance Act as “negligence” — what is sometimes called negligence per se.

Judgment affirmed.