International & G. N. R. Co. v. Hall

• Decision Date: 25 November 1890
• Citation: 15 S.W. 108
• Parties: INTERNATIONAL & G. N. R. CO. v. HALL.
• Court: Texas Supreme Court

15 S.W. 108

INTERNATIONAL & G. N. R. CO. v. HALL.

Supreme Court of Texas.

November 25, 1890.

Appeal from district court, Anderson county: F. A. WILLIAMS, Judge.

Gould & Camp, for appellant. Gregg & Reeves, for appellee.

HENRY, J.

This suit was commenced by appellee against the railroad company to recover damages. By an amended petition, plaintiff alleged the appointment of receivers of the property of the corporation, subsequent to the institution of the suit, and prayed that they be made parties defendant. The plaintiff testified that he was employed by the railroad company as a carpenter, for about three months before the date of his injury; that he was standing between two cars which were standing about three feet apart; that the two cars were pushed together, catching him between them, and breaking the larger bone of his right arm about three inches from his elbow. There were a number of other cars both before and behind plaintiff, entirely obstructing his view. He was engaged in repairing the car at which he was standing, which was on a track devoted to the use of repairing cars in the yard of the defendant, at Palestine. There were a number of other tracks in the same yard over which trains were continually passing and making much noise. Plaintiff was working, at the time, under the direction of a foreman. Plaintiff testified that he had never, before taking employment on the defendant's railroad, worked for a railroad, and that he knew nothing about their means of management, and supposed that the company would protect him in its own way; that before that time, when other cars came in to be repaired, somebody would give an alarm by calling upon those exposed to "look out;" that he heard no warning at the time of his injury. The collision was brought about through the act of putting another car on the repair track by the use of an engine, which caused it to come into violent collision with the standing cars in front of plaintiff, and backed them against those in his rear. A number of witnesses for the plaintiff testified that they were at the time of the injury, and had been previously thereto, engaged in working for the defendant company at the same place, and that they knew of no rule for giving notice to workmen of their danger when other cars were put upon the repair track; that the only notice ever given was some person's calling out, to those who were in a perilous situation, to "look out;" that they heard no notice of any kind given on the occasion when plaintiff was injured. The defendant's master car builder testified that the defendant did have rules to protect the men at work against danger from incoming trains; that the company kept flags for the men to use on the repair tracks, and that it was the duty of the switchman, or the fireman of the engine, to call out to the men on the repair track whenever an engine came in; that the switch leading to the repair track was always kept locked, and the switchman carried the key. The switchman testified that it was his duty to notify the men at work when the engine went onto the repair tracks; that he did not see any one at work on the occasion when plaintiff was hurt, but that he called out, "Look out!" when the engine went on the track. The evidence tends strongly to show that the noise surrounding plaintiff and his situation was such as to prevent his hearing a signal so given. The physician who treated plaintiff testified that "the larger of the two bones of his right forearm was broken by being pushed outwardly about two or three inches from his elbow; that the ends of the bones are not in apposition; that one end laps over the...