Atchison, T. & S. F. Ry. Co. v. Mendoza

• Decision Date: 12 December 1900
• Citation: 60 S.W. 327
• Parties: ATCHISON, T. & S. F. RY. CO. v. MENDOZA.<SMALL><SUP>1</SUP></SMALL>
• Court: Texas Court of Appeals

60 S.W. 327

ATCHISON, T. & S. F. RY. CO. v. MENDOZA.¹

Court of Civil Appeals of Texas.

December 12, 1900.

Appeal from district court, El Paso county; J. M. Goggin, Judge.

Action by Julio Mendoza against the Atchison, Topeka & Santa Fé Railway Company. From a judgment in favor of plaintiff, defendant appeals. Reversed.

J. W. Terry, for appellant.

NEILL, J.

This suit was brought by the appellee against appellant railway company to recover $1,500 damages for the former's loss of the services of his minor son, Valente Mendoza, alleged to have been occasioned by injuries inflicted upon the latter while a passenger on one of appellant's switch engines by the negligence of appellant in suddenly moving its engine while Valente was in the act of alighting from the steps thereof. Appellant's answer contained a general denial and a plea of contributory negligence. The case was tried before a jury, and upon their verdict a judgment for $300 was rendered against the railway company, from which it has appealed to this court.

The uncontroverted evidence shows that on the 15th day of December, 1898, and for many years prior thereto, appellant company operated the railroad of the El Paso & Rio Grande Railway Company, extending in a northwesterly direction about 2½ miles from the city of El Paso to the smelter of the Kansas City Smelting Company; that during the time the El Paso & Rio Grande Railway was so operated by appellant a large number of employés of the smelter company, who resided in the western part of the city of El Paso, were in the habit, after their day's work was done, of getting on appellant's switch engine and the cars, if any, attached thereto, if they could, and riding without compensation, with the knowledge and acquiescence of appellant's employés, to a point on the road where a switch known as the "link switch" is maintained and used for switching the cars by appellant company, and there getting off, and repairing to their respective homes; that late on the evening of December 19, 1898, appellee's son, Valente, a minor about 19 years old, who was then, and had been for some time prior thereto, an employé of the smelter company, got on the switchboard of one of appellant's switch engines, to which were attached in front a number of empty freight cars, for the purpose of riding thereon to the link switch opposite his father's residence. Neither the engineer, fireman, nor any of appellant's employés engaged in operating said engine or cars at any time until the accident hereinafter related occurred knew that Valente, or any one else, had got upon or was on the switchboard of the engine. The cars attached thereto, as before stated, were then pushed down by the engine to the link switch for the purpose of placing them thereon. But the car in front was pushed a little beyond the point of intersection of the switch and main track, which required the motion of the engine to be reversed in order to place the car upon the switch. To reverse its motion, the engine momentarily stopped, and as Valente, for the purpose of getting off, placed one foot on...