13 S.W. 194 (Tex. 1890), Missouri Pac. Ry. Co. v. Lamothe

Citation:13 S.W. 194, 76 Tex. 219
Opinion Judge:HENRY, J.
Party Name:MISSOURI PAC. RY. CO. v. LAMOTHE et al.
Attorney:[76 Tex. 220] Willie, Mott & Ballinger, for appellant. [76 Tex. 221] Wheeler & Rhodes, for appellees.
Case Date:February 14, 1890
Court:Supreme Court of Texas
 
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Page 194

13 S.W. 194 (Tex. 1890)

76 Tex. 219

MISSOURI PAC. RY. CO.

v.

LAMOTHE et al.

Supreme Court of Texas

February 14, 1890

Appeal from district court, Galveston county.

[76 Tex. 220] Willie, Mott & Ballinger, for appellant.

[76 Tex. 221] 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[76 Tex. 222] 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...

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