Missouri Pac. Ry. Co. v. Lamothe

• Decision Date: 14 February 1890
• Parties: MISSOURI PAC. RY. CO. v. LAMOTHE <I>et al.</I>
• Court: Texas Supreme Court

13 S.W. 194

MISSOURI PAC. RY. CO. v. LAMOTHE et al.

Supreme Court of Texas.

February 14, 1890.

Appeal from district court, Galveston county.

Willie, Mott & Ballinger, for appellant. Wheeler & Rhodes, for appellees.

HENRY, J.

The appellee Theresa Lamothe, as widow of Alto Lamothe, deceased, in her own behalf, as well as in the behalf of Marie Lamothe, the mother of Alto Lamothe, prosecutes this suit against the Missouri Pacific Railroad Company for damages for negligently causing the death of said Alto Lamothe, who was, at the time he met his death, a switchman in the service of, and employed in the yards of, the Missouri Pacific Railroad Company at Galveston. The accident occurred at night, on October 12, 1886. Appellee alleges that her husband, while in the discharge of his duties as switchman, was required by the railroad company to make a coupling of two railroad cars in the service and under the control of appellant, and a part of its railway equipment; the night being dark, and the said Lamothe being wholly unacquainted with the defective draw-heads of the two cars which he was required to couple, and, further, that the draw-head of one of the said cars, which Lamothe was required to couple, was at the time out of order, and in a dangerous condition, and had been in such condition for months anterior to the fatal accident, and which was known to appellant, or might have been known by the exercise of reasonable diligence, but was wholly unknown to Lamothe. The petition charges that the appellant, in disregard of the safety of its employes, was at the time employing, in the making up of its trains, instead of a switch-engine, a large and powerful road freight-engine, which was being handled and controlled by an unskillful and incompetent youth, named Charles Marshal, acting as engineer; that said youth had neither the physical strength nor skill requisite for the proper discharge of the duties of an engineer; that said Marshal, for the want of the requisite skill and strength, could not properly handle and control the engine, which was known to appellant, but unknown to Lamothe; that while Lamothe was in between the two cars which he was required to couple, for the purpose of making said coupling, Marshal, being unable to control the engine, backed the engine, with one of the cars to be coupled, with such unnecessary force and violence as to jam the two cars closely together, the defective condition of the draw-heals of the two cars readily admitting of the passage of one draw-head by the other, thereby bringing the bodies of the said two cars so closely together as to smash and crush the said Alto Lamothe to death before he could extricate himself from the position of peril in which he had been placed by the wrong and negligence of appellant, and without fault on his part. The petition further charges that the two cars which Lamothe was required to couple were unfitted to be coupled together, the draw-heads thereof being so constructed as to admit of the passage of one by the other when in good condition, and which danger had been greatly increased by the negligence of appellant in allowing one of the draw-heads of the two cars to get out of order, and remain out of order for months anterior to the killing of Lamothe. The petition charges that Lamothe had entered the service of appellant the day he was killed; that he was wholly unacquainted with the dangerous condition of the draw-heads of the two cars which he was required to couple, and ignorant of the fact that one of the draw-heads was out of repair; that Lamothe was also unacquainted with the incapacity and want of skill of the engineer, Marshal; that at the time of his death Lamothe was 25 years of age, strong and able-bodied, and the sole support of his family; that he was earning at the time he was killed $60 per month wages. The appellant answered — First, by general denial; and, second, that the injuries from which Alto Lamothe died, if caused by the negligence of any one other than himself, were caused by the fellow-servants and co-employes of Lamothe, for which defendant was not liable, and that Lamothe, by his own carelessness and negligence, contributed to the injuries from which he died, and that but for his carelessness and negligence such injuries would not have been received by him. There was a trial of the cause, and a verdict and judgment for the appellee Theresa Lamothe for the sum of $6,000.

The counsel for plaintiffs, in his opening argument, upon questions of law addressed to the court in the presence of the jury, read from Wisconsin and Texas cases, — one showing a verdict for $15,000, and the other one for $10,000, against railroads. The defendant objected at the time to their being read, on the ground that it tended to prejudice the jury. The objection was overruled, and the ruling is assigned as error. We think it must...