Texas Pacific Railway Company v. Abe Behymer
| Decision Date | 20 April 1903 |
| Docket Number | No. 224,224 |
| Citation | 189 U.S. 468,23 S.Ct. 622,47 L.Ed. 905 |
| Parties | TEXAS & PACIFIC RAILWAY COMPANY, Plff. in Err. , v. ABE BEHYMER |
| Court | U.S. Supreme Court |
Messrs. David D. Duncan, John F. Dillon, and Winslow S. Pierce for plaintiff in error.
Mr. Cone Johnson for defendant in error.
This is an action for personal injuries, brought by an employee against a railroad company. It was tried in the circuit court, where the plaintiff had a verdict. It then was taken to the circuit court of appeals on a writ of error and bill of excep- tions by the company, and now is brought here on a further writ of error, the company being a United States corporation. A good deal of the argument for the railroad is devoted to disputing the testimony of the plaintiff below and arguing that the verdict was excessive, but of course we have nothing to do with that. New York, L. E. & W. R. Co. v. Winter, 143 U. S. 60, 75, 36 L. ed. 71, 80, 12 Sup. Ct. Rep. 356; Lincoln v. Power, 151 U. S. 436, 38 L. ed. 224, 14 Sup. Ct. Rep. 387. We must assume the most favorable statement of the plaintiff's case to be true, unless some particular request for instructions makes it necessary to deal with conflicting evidence. That statement may be made in a few words.
Behymer had been in the employ of the company as a brakeman about three months. On February 7, 1899, at Big Sandy, in Texas, he was ordered by the conductor of a local freight train to get up on some cars standing on a siding and let off the brakes, so that the engine might move them to the main track and add them to the train. The tops of the cars were covered with ice, as all concerned knew. He obeyed orders; the engine picked up the cars, moved to the main track, and stopped suddenly. The cars ran forward to the extent of the slack and back again, as they were moving up hill. The jerk upset Behymer's balance, the bottom of his trousers caught in a projecting nail in the running board, and he was thrown between the cars. It is true that the jury might have drawn a different conclusion from his evidence, or have disbelieved it in essential points, but they also were at liberty to find, as they must be taken to have found, that the foregoing statement is true. The car belonged to another road, but was in the charge of the defendant company, and, according to the statement of the counsel for the plaintiff in error, had been inspected before the accident, although we should have doubted whether the testimony meant to go so far. Behymer based his claim upon negligence in stopping the cars so suddenly with knowledge of his position and the slippery condition of the roof of the car, and upon the projection of the nail, which increased the danger and contributed to his fall. It should be added that, by a statute of Texas, if there was negligence, the fact that it was the negligence of a fellow servant was not a defense. Tex. Gen. Laws 1897, Special Session, chap. 6, § 1; 2 Sayles's Tex. Civil Stat. 1897, art. 4560f.
The fundamental error alleged in the exceptions to the charge is that the court declined to rule that the chance of such an accident as happened was one of the risks that the plaintiff assumed, or that the question whether the defendant was liable for it depended on whether the freight train was handled in the usual and ordinary...
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