Missouri Pac. Ry. Co. v. Somers

• Decision Date: 09 November 1888
• Parties: MISSOURI PAC. RY. CO. v. SOMERS.
• Court: Texas Supreme Court

Page 741

9 S.W. 741

MISSOURI PAC. RY. CO. v. SOMERS.

Supreme Court of Texas.

November 9, 1888.

Appeal from district court, Hunt county; W. C. JONES, Special Judge.

Action by J. C. Somers against the Missouri Pacific Railway Company for injuries received by defendant's alleged negligence. Verdict and judgment for plaintiff, and defendant appeals.

Bryant & Dillard, for appellant.

GAINES, J.

The appellee, who was plaintiff below, was a brakman in the service of the appellant company, working upon a freight train. His place of duty on the train was in the caboose, upon which the brake was defective. The handle in the car would set the brakes, but would not throw them off. The defect was well known to appellee. While the train was in motion it became necessary for him to go to the rear platform of the car, and down upon the lower step and to stoop, so as to throw off the brakes by the use of an implement which he took with him for the purpose. While in the stooping posture his head was struck by a cattle-guard in passing, and he was injured. He brought this suit to recover damages for his injury, and obtained a judgment. He testified that he knew of the defect in the brake. It was alleged, and testimony was adduced which went to show, that the cattle-guard was improperly constructed by reason of being placed in dangerous proximity to the track. The evidence was conflicting upon the point, but was sufficient to warrant the jury in finding that it was dangerous. In regard to his knowledge of the defective construction of the cattle-guard he testified, in effect, that he knew nothing of the one which caused the injury, except that it could not have been more than 10 inches from the car, for the reason that otherwise it would not have struck his head; but he also testified that he knew that several of the cattle-guards on the road were too near to the track, sufficiently near to strike the feet of a brakeman sitting upon the top of the car, with his legs hanging down; and that some of them were slanting and some were perpendicular. Other testimony showed that the guard which struck him was slanting, but the whole evidence leaves but little doubt that they were all about the same distance from the track. It is clear that the plaintiff could not recover for any injury directly resulting from the defect in the brake, because he knew of this, continued to use it, and took the risk. If, however, in attempting to remedy its defective operation, he was struck...