Trinity & S. Ry. Co. v. Lane

• Decision Date: 20 February 1891
• Citation: 15 S.W. 477
• Parties: TRINITY & S. RY. CO. v. LANE.<SMALL><SUP>1</SUP></SMALL>
• Court: Texas Supreme Court

15 S.W. 477

TRINITY & S. RY. CO. v. LANE.¹

Supreme Court of Texas.

February 20, 1891.

Appeal from district court, Trinity county.

Sam. T. Robb and J. P. Stevenson, for appellant. Adams & Adams, for appellee.

GAINES, J.

This was an action for personal injuries, brought by appellee against the appellant corporation. The appellee took service as a brakeman on a train of the Missouri Pacific Railway Company. The train being operated upon appellant's road passed onto a side track, where it became his duty to uncouple the cars. The side track, as he testified, was badly constructed, and was uneven, and was not filled in between the ties. On account of the unevenness of the track, as he further testified, the cars being in motion, he was unable to uncouple them while remaining upon the ground. He therefore mounted a fiat-car that was to be detached, and attempted to withdraw the pin while occupying that position, but by reason of a jolt, resulting from the unevenness of the track, as he swore, he was thrown between the cars, and, in order to extricate himself, caught his foot upon the coupling. He further testified that he would have succeeded in saving himself but from the fact that the continued jolting of the cars resulting from the roughness of the road prevented him. His foot was crushed between the coupling, and was injured to such an extent that an amputation became necessary. The conductor of the train gave evidence contradictory of the testimony of the plaintiff as to the manner in which the accident occurred, but upon cross-examination admitted that he did not see the plaintiff until he jumped from the cars, at which time the injury had been inflicted. He admitted that his testimony upon this point was a mere matter of opinion; and, if an objection had been urged to it, it should have been excluded. The plaintiff entered the service of the Missouri Pacific Railway Company only nine days before the accident, and at the time he so entered he was practically without experience in railroad work. He testified that he was not instructed as to his duties; was not aware that the mode of uncoupling attempted by him was dangerous; and that, but for the defect in the track, he could have saved himself from injury. The conductor testified that he warned him but an hour before the accident not to attempt to make a coupling while on the cars; and that immediately after the injury was inflicted he reminded him of his warning, and that the plaintiff expressed his regret that he had not taken the advice. The plaintiff, in his rebutting evidence, denied the warning, and also denied that any such conversation occurred as that to which the conductor had testified. Upon the latter point the plaintiff was corroborated by two other witnesses. The plaintiff also testified that in working on the road he had passed the side track, but had not observed it, and did not know of its defective condition until the time of the accident.

The appellant's first six assignments of error complain that the verdict of the jury is not supported by the evidence in the following particulars, to-wit: First, as to the condition of the side track; second, as to the question of contributory negligence; and, third, as to a knowledge of the plaintiff as to the defects in the side track. We think that there was evidence sufficient to justify the jury in finding that the side track was in bad condition, and that, but for its defective condition, the plaintiff would not have been injured; that he was inexperienced, and had not been instructed as to the dangers and manner of making the coupling; and that, therefore, he was not negligent; and that he had no knowledge as to imperfect state of the track that caused the accident. It is also complained, in effect, that the verdict is against the evidence, "because the proof showed that plaintiff, when applying for a position as brakeman, represented...