Robinson v. H. & T. Cent. Ry. Co.

Decision Date01 January 1877
Citation46 Tex. 540
PartiesA. W. ROBINSON v. H. AND T. CENTRAL RAILWAY CO.
CourtTexas Supreme Court
OPINION TEXT STARTS HERE

APPEAL from Harris. Tried below before the Hon. James Masterson.

February 15, 1873, Robinson sued the railway company for damages, for an injury to his foot, caused by the wheel of one of the cars of the defendant running over it, while he was acting as brakeman, in employ of defendant, on a freight train.

The defendant pleaded a general denial, and contributory negligence on the part of plaintiff.

On the trial, the plaintiff testified as follows; “At the time I got my foot hurt, I was in employ of the defendant as brakeman on freight train of defendant, running from Houston to Hearne. I have been so employed since some time in December next before. P. T. Atkinson was the regular conductor on the train, but on the 16th of February, 1872, he remained at Houston, and Wade H. Robinson acted as conductor on that trip. He was also a brakeman on the train with me. We left Houston about 4 1/2 o'clock in the morning, and there were about twenty to twenty-five cars in the train. For trains of this length, the usual number of men was, one engineer, a fireman, conductor, and four brakemen. On this trip there was no brakeman to take the place of Wade H. Robertson; he acted both as brakeman and conductor. We were going north, and my station was on the rear car of the train, the caboose, and Robertson was stationed ahead of me several cars. As we approached Navasota, he called me to him, and said he was a little behind time; had a car to set out at Navasota, and wanted to lose as little time as possible, so as to meet the down train at Millican on time. He told me he would put on the brakes in front, so as to take up the slack of the train, and for me to go down between two cars and uncouple them. There were no hand holes or brake rods between the two cars that I was to go down between. I went down and pulled the pin, and then the train separated. It was then running at the rate of five or six miles an hour. When the cars separated, I had nothing to hold on to, and I jumped out to one side. In doing this, I stumbled and fell. There was no brakeman at the rear end of the train. Wade H. Robertson motioned to me to get on the rear part of the train that had been cut off, and stop it. I understood his motion, or what he meant, and there being no side ladder on the first car, I ran back to the side ladder on the second car, and caught hold of it, and tried to spring up, but the construction train had dumped some fresh sand along there, near the track, and it, being soft, gave way under me, so that I could not spring so as to get a foot-hold. I saw that if I hung on to the train, I would be taken between the car and platform, and crushed, so I tried to throw myself away from the car with my hands and body, and, as I let go, I fell with my right leg across the rail and under the car, and, as I got it out, the car wheel caught and crushed my big toe and the one next to it. I got up and sat down on a pile of lumber. After setting out the car, the men on the train came back to me, and cut off my boot and took me to the depot station. This occurred between 11 and 12 o'clock, of the 16th of February, 1872, at Navasota. I never had known Wade H. Robertson to act as conductor of a train before, nor have I known of it since. He failed to put on the brakes so as to keep the cars from separating. I would not have gone down to cut the train, but for his promise to put on the brakes, and hold up the cars, and not let them separate. When they separated, I had nothing to hold upon, and nothing to stand on, except the draw-head, or bumper, and had to jump, or fall under the train. It was necessary for me to remount the part of the train cut off, and stop it. We usually work by signs, as the cars make so much noise, we cannot converse. I was laid up about six weeks with my foot, then went on crutches awhile, and it was about four months, from the time I was hurt, before I was able to work much.

I am not more than half the man I was before; I can't get around so well; and can't run as fast as a setting hen. Very often I can't wear a shoe on that foot. Since I got able to work, I have been doing first one thing and then another. I first tried working in the Eagle Iron Works, but had to quit, because I could not stand the lifting, and it caused me great pain. I was getting fifty-five dollars a month on the railroad, and while disabled, it paid twenty-three dollars a month board. I am now engaged in buying hides and wool, in Galveston. Drs. Massie and Poulson attended me, and made three amputations of my two toes before the wound got well. Gangrene at one time set in, and made my wound very troublesome.

On cross-examination, he said: “I am now buying hides and wool for T. P. Robinson, of Galveston, and am getting sixty dollars a month; next winter I expect to get one hundred and twenty-five a month. I knew, the night before we left Houston, that Atkinson, the regular conductor, was not going on the train next day, and that Wade H. Robertson was to act as conductor in his place. I had heard that Robertson had been a conductor, but did not have any knowledge of the fact. I did not know whether any one was going in Robertson's place as brakeman or not. It is usual, when one man wants to lay off for a trip, for some other one to do the work of himself and the one that lays over, so as to keep his wages going on. It is usual for hands to jump on and off the cars when in motion. A man cannot stand on the drawhead of a car, when in motion, without something to hold to--a hand-hold or brake-beam at the end of the car. I knew the risk, when down between the cars, to cut the train, and would not have gone down but for the promise of Robertson, that he would put on the brakes and hold the train together. I don't know why the sand had been placed along the side of the track, but supposed it was to be used in raising the track.”

Re-examined for himself, he said: “The sand along the track, where the accident occurred, had been dumped off by the car load, and, I suppose, was from one to two feet deep, for fifty or sixty yards before getting to Navasota station. Wade H. Robertson is now at work for defendant, as brakeman. He has been gone for a time. He worked three or four weeks for defendant, after I got hurt, so he told me. I had not seen him since, until yesterday.”

James Terry, next sworn, says: “There is a space, of sixteen to eighteen inches, between box-cars, but not room for a man to stand on the draw-head, or bumper, while the cars are in motion, and after they have separated, without a brake-beam or hand-hold to cling to, unless he is tall enough to reach the top of the car. A competent conductor would not order a man down to cut the train while in motion, at the rate of five or six miles an hour, and when he had no brake-beams or hand-holds. I have done it myself, when I would not require another to do it, because I would sometimes take risks which I would not require others to take. When I did it, I could reach and hold to the top of the car. When brakemen know that a train is to be cut in this way, they usually provide a rope, with which to draw the pin to the top of the car.”

A. W. Spencer, next sworn, says: I had been running trains on the Central Railroad about nine years, until I quit, about a year ago. The conductor has charge of the train, and the brakemen are required to obey him. He employs the train hands, and discharges them, when they do not suit him. No ordinary man could stand between two box cars, when in motion, and, after the train had separated, without hand-hold or brake-beam, to hold to. If the cars separate while he is between them, he must get out the best way he can. A competent conductor would not order a man down between two box cars to cut the train when in motion, and with nothing to hold to, and allow the train to separate while he was there. Train hands often catch the ladder on the side of the cars, and get on the train. Sand placed on the side of the track, I should think, would obstruct them some in doing so.

William B. Freer, being sworn, for defendant, testified: I was engineer on the freight train on which the plaintiff was, at the time he got hurt. It was at Navasota; the speed had been checked, and the train was moving, at the time, at the rate of four to five miles an hour. It went to the north end of the switch, and set out a car, and returned. When I saw the plaintiff was hurt, I went to him, and asked if he was hurt. He said he was trying to get on the train that had been cut off, and missed his hold, and the car ran over his foot. We cut off his boot, saw his toes were smashed, and took him to the station house, and a doctor was sent for, and soon after, the train went on to Millican. The steam shovel had dumped sand along the side of the track there, for purpose of raising the road--it had been dumped off in the usual way. Sand is often so placed along the track for repairing; it was lying along about the end of the ties.

On cross-examination, he said: I had not noticed the sand there before. It was fresh, and was some fifteen yards from the platform, and some twenty feet from the small one. There was about the usual number of cars on that train that day--say, twenty to twenty-five. When the train was cut, some five or six cars were left behind. There is sand along the track for repairs, and it sometimes remains a month before it is used.

J. A. Nelson, for defendant: I was brakeman on the train with plaintiff, and was on the train when he got hurt, but did not see the accident. My station was on a car nearest the engine; plaintiff was at the rear of the train. Ridgley and Wade H. Robertson were the other brakemen between us, the latter acting also as conductor on that trip. The night before we left Houston, I knew that...

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