Arabello v. San Antonio & A. P. R. Co.
| Decision Date | 14 May 1889 |
| Citation | 11 S.W. 913 |
| Parties | ARABELLO <I>v.</I> SAN ANTONIO & A. P. R. CO. |
| Court | Texas Supreme Court |
Henry E. Vernor, for appellant. Houston Bros., for appellee.
As the disposition of this appeal depends upon the question of the sufficiency of the petition, a general as well as special demurrer having been sustained to it, the material allegations are set forth in order to determine the correctness of the court's ruling. After the proper caption and description of the parties the petition alleges that in the month of December, 1885, the defendant, the San Antonio & Aransas Pass Railroad Company, was constructing its road between the city of San Antonio and the town of Floresville. That it was represented by John P. Nelson in said work, who had full power and control in its construction, there being no construction company. That he employed, directed, controlled, and discharged all hands at said work, and was the vice-principal of said company. That on the 23d of said month said Nelson, acting for the company, employed plaintiff as a day laborer on the construction of said road, to unload ties and railing, placing and securing them on said road-bed, but not in the capacity of running or managing any of the trains on said road, at the stipulated price of 75 cents per day, and under the control of said Nelson entirely. That in said contract of employment it was understood and agreed that defendant company should safely transport plaintiff to and from the place of work. That under said contract plaintiff began said work on said road at a distance of 25 miles from San Antonio at noon on said 25th day of December, and continued to work until the evening of said day. That after the day's work was done plaintiff was safely seated upon one of said cars loaded with railroad timber, being cross-ties, there being nothing but flat-cars provided for him and his co-workhands to ride upon, when the said Nelson aforesaid commanded plaintiff and another co-workhand to get from off the car loaded with ties and upon the car immediately in front of the same. That in obedience to said orders plaintiff took the position on said car assigned to him by said Nelson, vice-principal, aforesaid, by seating himself upon the edge of said car, as was the universal custom, and as he was directed by said Nelson so to ride, there being no other place or manner in which to sit when riding on said car, and there being no apparent danger, or danger known to, or which could be reasonably apprehended by, plaintiff in so riding. That immediately upon his taking his position thereon the said train, in charge of said Nelson as aforesaid, was started off towards the camp; the said Nelson seeing and knowing the plaintiff had taken the position that had been assigned him upon the edge of said car. Plaintiff avers that it was soon very dark, and that said train was being run at a rapid rate, and, after traveling on said train about two miles towards San Antonio, and being then about 23 miles from San Antonio, south or south-east, he (the plaintiff) was suddenly knocked from off said car, and from where the said Nelson had directed him to take his position, by a stake or beam of which plaintiff had no knowledge or means of knowledge, and which, through gross negligence and gross carelessness, was placed and left standing by the orders of said Nelson near the railroad track, so near and in such a manner as to strike plaintiff while riding on said car. That the plaintiff, while so riding, was guilty of no negligence, carelessness, or fault which directly contributed to the injury sustained by him, as hereinafter alleged, and acted in taking said position, and while he was so sitting, as any man of ordinary prudence and care would have acted under like circumstances. That said defendant company had some time during that day, or about that time, so negligently and carelessly constructed its road-bed that said stake, unknown to the defendant, was left standing so near the track that the edge of the car passed within a few inches thereof, and nearer the track than stakes are ever left standing on any railroad, or on defendant's road at any other point, and that said defendant company, and the said Nelson, well knowing said stake was there, and its dangerous proximity to their track, and its said foreman or agent, John P. Nelson, having ordered plaintiff on said flat-car, and directed him to take the said position, he, the said Nelson, knowing the dangerous position of said stake, and without informing him that said stake was there, and well knowing that plaintiff knew nothing thereof, that by reason of said gross negligence and carelessness in the defective construction of said road-bed, in placing and leaving placed the said stake, as aforesaid, and providing nothing but flats for plaintiff to ride upon, and directing him to take the position as aforesaid, rendered so extremely dangerous by said stake, and of which danger plaintiff knew nothing, and in not warning him that there was a stake in unusual and dangerous proximity to their track, well knowing plaintiff was ignorant thereof, and had no means of knowing the position of said stake, the plaintiff, while riding at the position so assigned him by the said Nelson, was struck by the said stake, both of his legs were broken and crushed so that they had to be amputated, and he was knocked from said car, and otherwise greatly hurt and wounded. That by reason thereof he has been helpless ever since, and is still so, and suffered great bodily pain and mental agony since he was...
To continue reading
Request your trial