Texas & N. O. R. Co. v. Kelly

• Citation: 80 S.W. 1073
• Parties: TEXAS & N. O. R. CO. v. KELLY.<SMALL><SUP>*</SUP></SMALL>
• Decision Date: 10 December 1903
• Court: Court of Appeals of Texas

80 S.W. 1073

TEXAS & N. O. R. CO. v. KELLY.^*

Court of Civil Appeals of Texas.

December 10, 1903.

Appeal from District Court, Harris County; W. P. Hamblen, Judge.

Action by Bernard R. Kelly against the Texas & New Orleans Railroad Company. From a judgment in favor of plaintiff, defendant appeals. Affirmed.

Baker, Botts, Baker & Lovett, Andrews & Ball, and C. L. Carter, for appellant. Lovejoy & Malevinsky, for appellee.

GARRETT, C. J.

This action was brought in the district court of Harris county by Bernard R. Kelly against the Texas & New Orleans Railroad Company to recover damages for personal injuries received by Kelly while he was in the employment of the company, resulting, as alleged, from its negligence. The petition showed that the plaintiff was at work for the defendant as the foreman of a gang of men in the construction and extension of its line of railroad from Rockland to Cedar, in Nacogdoches county; that while riding on a hand car about noon March 13, 1901, going from his place of work to his camp for dinner, he ran into an obstruction upon the track, and was seriously injured. The alleged acts of negligence on the part of the defendant were that it erected and permitted to remain across the track a dangerous and hazardous obstruction, consisting of heavy poles, and did not warn the plaintiff of its presence. The defendant answered by general demurrer and general denial, and special pleas in bar of facts to show assumed risk and contributory negligence. One of the facts alleged was that the plaintiff was using a hand car that he knew to be defective, in that it was without a brake. In a supplemental petition the plaintiff admitted that the hand car he was using was defective in the respect alleged, and pleaded that he had been directed to use it by a superior officer. A supplemental answer was filed by the defendant, demurring to the supplemental petition, and denying its allegations of fact. After the court had overruled the demurrers, the cause was tried by jury, and resulted in a verdict and judgment in favor of the plaintiff for $30,000.

At the time he received the injuries complained of, the plaintiff was in the employment of the defendant as foreman of a bridge gang, and was working near the town of Nacogdoches in the construction of the extension of the defendant's railroad from Rockland to Cedar. The company was building its track north from Rockland, and had reached a point near Nacogdoches; but that part of the road had not been finished, and trains were running only as far as Huntington, several miles south of the place of the accident. The track over which the plaintiff was riding when he was injured had been constructed only two or three days. It had not been surfaced up, and was in an unfinished condition, and had not been turned over to the proper department for the operation of trains. As foreman, the plaintiff had charge of a gang of men in camp about three miles south of Nacogdoches, and working between the camp and that town. On the morning of the accident, March 13, 1901, he went out to work with 20 men to fix a cattle guard and build a bridge; using two hand cars furnished by the company for the transportation of the men and tools. One of the hand cars had no brake on it, and had been in that condition for about two weeks. The plaintiff had had a brake made for the car the day before, and when the men were ready to start out to work on the morning of the accident, and one of them was about to fix it on the car, George Connors, the superintendent of the bridge and building department, and the superior officer of the plaintiff, peremptorily ordered Kelly to let the brake go, and get the men out to work. Plaintiff obeyed the order, and the brake was laid on the car, and taken along to be fixed on later; but, after the men had reached their place of work, it was discovered that they had no suitable nut for fastening it on, and it was not attached to the car. Angelina river is about 13 miles south of the town of Nacogdoches, and in its construction from the river the roadbed had passed through several inclosures. There was one near the river, where a temporary fence was placed across the track to protect the inclosure until a proper cattle guard could be put in. There were several sets of bars across the track— according to some of the testimony, four— similar to the one at which the plaintiff was injured, between the place of the accident and where plaintiff was at work that morning. Those bars were made by planting two posts upright in the ground on each side of the track, with cleats supporting poles placed across, that could be taken down and put up at will. They were erected under the direction of the plaintiff. When the plaintiff started out to work, he took the two hand cars and placed them on the track— the one without a brake in front—and went north along the railroad to work. He left one gang of seven men with the rear car at a place where they were to put in a temporary cattle guard. With the rest of the men, the plaintiff went on to Lananna creek, where they were building a bridge. At noon the men left off work, and started to return to camp for dinner. The men at the cattle guard upon the approach of the others put their car on the track in front of them, and both cars were propelled along the track at a speed estimated by the witnesses at from 8 to 12 miles an hour. There was nothing unusual in the speed of the car or the manner of its operation. Six or seven men make a load for a hand car, and the car upon which the plaintiff was riding was heavily loaded and crowded. Plaintiff was sitting on the car in front between two other men, with his feet hanging above the track, over the end of the car. They stopped at each of the sets of bars through which they had passed going out to work, and took them down and put them up again; and after they had passed the last one of them, and were running along, they suddenly discovered another set of bars, which had been put up that morning as a temporary cattle guard at an inclosure under the direction of W. C. Todd, the foreman of the track-laying men, and of which they had no previous knowledge. The men on the car in front, with the brake, succeeded in preventing it from striking the bars with much force, and no one on it was injured, though some of them were thrown off, and others jumped off. The other car, which was running at a distance of 50 or 60 yards behind the car in front, ran violently into it, and the plaintiff and others were injured. From the place of the accident back toward Nacogdoches the track was straight for a considerable distance, and the obstruction could have been seen plainly for a quarter of a mile. The hand cars were running on a down grade, but the grade rose just at the point of obstruction. There was evidence that the wind was blowing and that it was dusty; that the bars were made of brown pine poles, the color of the track; and that the fence on either side had been thrown down as far from the track as the edge of the barrow pits. The plaintiff belonged to the bridges and buildings department, and put in temporary cattle guards whenever he was so instructed. Todd, who had the bars put up, into which the hand car ran, was engaged in track laying. There was evidence that it was not customary to put fences or obstructions across the roadbed after the track was laid, and that plaintiff knew of that custom. No notice or warning of any character was given of the erection or presence on the track of the bars that caused the accident. There was no rule as to the distance apart the hand cars should have been run, or custom as to the place the plaintiff should have occupied on the car, or providing for a lookout. If the rear car had been equipped with a brake, it is probable that it could have been stopped, and the collision prevented. The distances from the front car to the obstruction, and between the front car and the one in the rear, when the obstruction was first discovered, were variously estimated; but it was shown that the rear car was too close to the front car to have been stopped without a brake before running into it. The plaintiff's injuries were to the back and spine, and a concussion of the spinal cord, and have resulted in the total paralysis of his lower limbs, and, to some extent, of his bowels. He suffered great pain in the back and thighs. His eyes and digestion are affected, and the pain keeps him awake. He had shown no improvement within a year, and it was the opinion of physicians that the paralysis of his lower limbs was permanent, and he would never improve. The testimony as to the plaintiff's condition was uncontradicted. He was 54 years old, and was earning from $100 to $125 a month.

There is evidence to support the verdict of the jury that the plaintiff was injured by the negligence of the defendant in putting the obstruction on the track without warning the plaintiff of the presence thereof, that when he received the injuries the plaintiff was exercising due care in the use of the hand car, and that the plaintiff has sustained damages in the amount found by the jury. And the facts so found by the jury are adopted as the conclusion of this court.

The assignments of error which question the sufficiency of the evidence to support the facts found by the jury need not be further considered, and do not require separate disposition. It is enough to say that in the opinion of the court they were sufficient to show that the plaintiff was injured by the negligence of the defendant, without fault on his part, and sustained damages to the amount of the judgment. The negligence of the defendant was shown by the construction of the bars across the track at a place where the fence of the inclosure was thrown down so that it would not attract attention to the presence of the bars, which were of pine poles covered with brown bark of the color of the ground, and put up under such...