Adams v. Eddy

• Decision Date: 19 December 1894
• Citation: 29 S.W. 180
• Parties: ADAMS v. EDDY et al.
• Court: Texas Court of Appeals

29 S.W. 180

ADAMS v. EDDY et al.

Court of Civil Appeals of Texas.

December 19, 1894.

Appeal from district court, Dallas county; R. E. Burke, Judge.

Action by Charles Adams against George A. Eddy and another. There was a judgment for defendants, and plaintiff appeals. Affirmed.

For report on former appeal, see 18 S. W. 490.

W. L. McDonald, for appellant. Alexander, Clark & Hall, for appellees.

LIGHTFOOT, C. J.

This suit was instituted January 15, 1890, by the appellant, Charles Adams, plaintiff below, for damages on account of alleged personal injuries charged to have been received December 11, 1889, on account of the derailment of a hand car furnished appellant in his employment as a hand in the Missouri, Kansas & Texas Railway Company's yards at Dallas, Tex., by Eddy and Cross, receivers of the Missouri, Kansas & Texas Railway Company of Kansas, appellees herein, and defendants below. Appellant alleged, substantially, that, while engaged in performing his duties,—the relation of master and servant existing between him and said receivers,—said receivers furnished him a defective hand car to work with, and maintained their track over which he had to operate said hand car in a defective condition; that, while the condition of said track and said hand car were unknown to him, the same was well known to his employers; that while he was operating said hand car over said track on December 11, 1889, his employers' division road master was on said car, and, well knowing of the condition of said car and of said track, ordered him and his fellow servants to "pull up," to get out of the way of a yard engine, though the defective hand car and track made it extremely dangerous to do so; that he and his fellow servants aforesaid obeyed said order, and the hand car was derailed on account of its defective condition, and on account of there being a low joint in said track, whereby he sustained injury, etc. The appellees (defendants below) denied, all and singular, the allegations made by appellant (plaintiff below), and specially defended on the grounds that the hand car was in good condition, and that the plaintiff was not injured; that the derailment was not occasioned by any negligence on the part of the defendants; that the hand car on which plaintiff was riding jumped off of the track on account of the irregular pumping of plaintiff and his fellow servants engaged in running the car at the time of the accident complained of,—the irregular pumping being this: The section men running said car, standing on the rear end thereof, and pumping the rear handle, jerked and pumped with too much violence, thereby lifting up the front wheels of the hand car, which, coming down, missed the rail, whereby the car ran off the rails, all of which was due to the negligence of the plaintiff and his fellow servants pumping the car with him, for which negligence these defendants were in nowise liable. The trial resulted in a verdict and judgment thereon for defendants, from which the plaintiff has taken this appeal.

Under the verdict and judgment, we find from the evidence the following conclusions of fact: About December 11, 1889, appellant was in the employ of appellees, as receivers of the Missouri, Kansas & Texas Railway Company, and was directed by Mr. Powers, who was road master and a vice principal, to get on a hand car at Dallas, with four other hands, and go down the road two miles, and help line up the track. The five hands went under the direct supervision of said Powers, performed the labor, and were returning to the yards in Dallas, when they saw a switch engine in the lower portion of the yards. The engine was about 200 yards away, and Powers directed the hands to pull up to where they could take the hand car off the track. In doing this, the car was being worked by three men on the rear end of the car, who were working the lever, two in the center working the front lever, and Powers himself on the front end of the car. The hands were pumping, and the car was running about eight or nine miles an hour, when, at the crossing of Griffin street, in Dallas, the three hands pumping at the rear end of the car gave their lever a sudden jerk, and, the greatest weight being at that end, it lifted the front wheels off the track, causing the car to run off the truck. The parties all jumped off, except appellant, who was injured. The hand car and the track were in good condition, and the car was not being run at an unusual or immoderate speed. The appellees used reasonable care and caution in handling the car, and the accident occurred by reason of the manner in which the appellant and his fellow servants, who were pumping said car, handled the pumping levers.

1. Appellant's first assignment of error is, in substance, that the court erred in refusing his first special charge requested, which places his right to recover upon the high rate of speed at which the car was being operated under the direction of Powers, the road master, which appellant claims was an act of negligence. It is true that in appellant's pleading he alleged that the car was being operated at a high rate of speed, and that this was an act of negligence; but, under the facts proved, it was shown that the car was running about eight or nine miles an hour — some of the witnesses putting it as high as ten miles an hour. Appellant testified that the car was going "pretty fast," but there was no...