The propositions of appellant present the point that the evidence speaks unequivocally of the lack of any substantial evidence upon which to found a legal liability to appellee, *Page 276 either (1) in any infraction of the Safety Appliance Act, or (2) in any negligence on the part of rear brakeman Hart.
We are of the opinion that the second ground mentioned above should be sustained. A judgment thereon is not and cannot be legally predicated in favor of appellee. The couplers failed to firmly hold at the first effort at coupling, and the effect of the disunion of the couplers in the forward movement of the locomotive was sufficient to cause the cars to move forward slowly, and, as appears, without noise, toward the engine, catching the deceased. The cars were at a complete standstill at the first impact. The rear brakeman's view of Bounds after the impact was partially obscured. But a few seconds of time intervened. In nowise, in the circumstances, was the alleged negligence of the rear brakeman shown to be the real producing cause in an act of misdoing of the death of the head brakeman.
We are of the opinion that the first point mentioned should be overruled, as we conclude that there is evidence in the present record authorizing the jury to determine, as in their province to do, that there was an infraction of the Safety Appliance Act (U.S. Comp.St. § 8605 et seq.) just prior to or at the time of the injury. There was failure of the couplers on the car and the tender of the locomotive to couple by impact in the first effort at coupling at Athens, and also afterward when the new crew returned from Tyler with the same engine. It appears that the locomotive was carefully backed and moved forward in each instance, and the operation was favorable to effect a coupling. The operation of the locomotive did not bear upon the failure of the couplers to couple, or upon the disunion. And there is evidence justifying the inference that the couplers were given fair opportunity to operate by the act of Bounds in the first instance and by the acts of the others in the second instance. By the second effort in the last instance there was a firm coupling, although it required manipulation between the cars in preparation for the second impact. By the second in the first instance when the cars rolled together, it is left uncertain whether or not the couplers "actually couples." It was further shown that, prior to the first impact in question, the coupler on the tender of the engine took "the gauge." meaning that the knuckle would open too wide, as much as five times within the 45 days preceding the day of injury. The "carrier irons" were loose and needed tightening upon several different occasions. The "pin lifter bracket" became loose at one time. The "lip" of the coupler on the box car was sprung, and the "carrier iron" loose. There is also opinion evidence as to the make and type of mechanism and the inherent condition and respecting the operation of the couplers. As shown, generally the coupler will take "the gauge" from wear, and such condition renders it likely not to stay closed; at times it will operate, and at times it will fail to hold without manipulation between the cars, notwithstanding attempted correction of this tendency by general repair. As testified by the brakeman Candy in reference to the second failure to couple:
"When the tender pulled loose from the car, it moved 4 or 5 feet and stopped. That which was then done toward effecting a coupling of the tender and the car was, I closed the knuckle on the box car with my hand, pulled the pin on the back of the tank with the pinlifter with my right hand, and finished opening the knuckle with my left hand. * * * The first thing I did or tried to do for this purpose (to get the cars coupled together) was, I raised the pin with the pinlifter on the box car and opened the knuckle with my hand. When I first tried to open the knuckle on the car I pulled the pinlifter with my hand. * * * Yes; I pulled the pinlifter with force that would have opened the knuckle sufficiently for a coupling by impact if the knuckle had opened. I was physically strong and stout. * * * No; I did not solely by means of the lever alone open the knuckle sufficiently for a coupling by impact; I had to use my hand on the knuckle in order to effect the coupling."
Other evidence besides appears in this respect as to the coupler on the box car, and its manipulation. On the other hand, there is evidence going to show, at least to justify a jury to determine, that the coupling on the fender was properly repaired and in workable condition, and that the coupler on the box car worked successfully, and that, properly manipulated, the coupler would hold. When all the facts and circumstances are considered, the determination of whether or not the knuckle of the couplers, one or both, on this trip and the tendency at times to lock and would not open, by reason of wear or condition, requiring manipulation by hand to open same, remains in the domain of open fact, and not of pure law. The coupler on the tender of the locomotive may have been sufficient as a fact to effect a coupling on all the other cars, as well as the particular box car in evidence, during the whole time of the round trip on the road. Yet the coupler on the particular box car as a fact may have been insufficient in virtue of its condition to properly effect at all times a coupling to the tender. Couplers are interdependent, and both of them constitute the whole within the scope of the Safety Appliance Act. We are therefore not inclined to disturb the verdict of the jury on this appeal in their finding of fact of an infraction of the Safety Appliance Act. The circumstances are not entirely unfavorable to such finding of fact. Railway Co. v. Wagner, 36 S. Ct. 626, 241 U.S. 476, CO L, Ed. 1110: Railway Co. v. Brown, 33 S. Ct. 840, 229 U.S. 317, 57 L. Ed. 1204: Railway Co. v. Gotschall, 37 S. Ct. 598, 244 U. S, 66, 61 L. Ed. 995; Railway Co. v. Powell *Page 277 (Tex.Civ.App.) 252 S.W. 268; Payne v. Baker (Tex.Com.App.) 258 S.W. 466; Id. (Tex.Civ.App.) 242 S.W. 343; Railway Co. v. Sprole (Tex.Civ.App.)202 S.W. 985. This present appeal is not entirely unsupported by other evidence, besides a single failure to couple, showing an infraction of the act.
There was no error in admitting the evidence that at the time of the death of Mr. Bounds he had a reasonable expectancy of being promoted to the position of conductor with increased pay; it being shown that appellant recognized seniority among employees and followed that rule of promotion. Hines v. Glascow (Tex.Civ.App.) 217 S.W. 1114; Railway Co. v. Elliott, 13, S.Ct. 837, 149 U.S. 268. 37 L. Ed. 731. We think the case of Railway Co. v. Elliott, 13 S. Ct. 837, 149 U.S. 266, 37 L. Ed. 728, is applicable only in the case there is an absence of proof of any rule or customary practice of recognizing seniority among employees for promotion.
We have duly considered the other assignments of error, and are of the opinion that each of them should be overruled.
The judgment is affirmed.