Bonnet v. Galveston, H. & S. A. Ry. Co.

• Decision Date: 23 December 1895
• Parties: BONNET v. GALVESTON, H. & S. A. RY. CO.
• Court: Texas Supreme Court

33 S.W. 334

BONNET v. GALVESTON, H. & S. A. RY. CO.

Supreme Court of Texas.

December 23, 1895.

Error from court of civil appeals of Fourth supreme judicial district.

Action by H. D. Bonnet against the Galveston, Harrisburg & San Antonio Railway Company to recover damages for the death of his son, alleged to have been caused by the negligence of defendant. A judgment for defendant was affirmed by the court of civil appeals (31 S. W. 525), and plaintiff brings error. Reversed.

Joseph Jones and Carter, Berry & Culberson, for plaintiff in error. Baker, Botts, Baker & Lovett and Clark & Fuller, for defendant in error.

GAINES, C. J.

This suit was brought by the plaintiff in error to recover of the defendant company damages for the death of his son, which was alleged to have been caused by the negligence of the company. The trial court having instructed a verdict for the defendant, and rendered judgment accordingly, the plaintiff appealed to the court of civil appeals, where the judgment was affirmed. It is here complained that the trial court erred in not submitting the case to the determination of the jury. We will state so much of the facts testified to upon the trial as we deem necessary to a decision of the question. The deceased, at the time of his death, was in the 22d year of his age, and had been in the employment of the defendant company as one of its bridge gang about three weeks. On the day of the accident, he was put to work upon a bridge in removing some guard rails, and was under the control of a "scratch boss," who was present directing the manner of executing the work. The bridge was about 60 feet above the bottom of the channel at its lowest part, and he fell about 18 feet. A witness testified, in effect, that the place of the accident was about 70 feet from the end of the bridge. The deceased and three others were directed to remove the guard rails. The four had raised the rail, and started to carry it off, when one McNutt, who, with the deceased, supported the rear end, stepped in an open space between the ties, which had been left by the removal of a space block, and threw the entire weight of that end upon the deceased. The latter was thereby thrown down, and off the bridge, and was instantly killed. There was testimony tending to show that deceased had never worked at that particular kind of work before the day of the accident; that, when he lost his life, he had only been employed on that bridge about an hour; and that he had up to that time assisted in removing only one rail. There was some conflict upon these points. Witnesses testified that the guard rails were of iron, about 20 feet long, and weighed about 400 pounds. There was testimony also to the fact that the safe mode of removing such rails, and that commonly adopted by railroad companies, was first to place the rail upon a "push car," and then to move it off the bridge. There was also testimony that, in order to do the work by hand with safety, at least six and even eight men would be required. Upon these points, also, there was conflicting evidence. McNutt, whose fall caused the accident, testified that he was in feeble health and strength; and it was shown that he had chronic bronchitis, and that he had lost his voice. A physician testified that, by reason of his infirmity, McNutt was liable, in an emergency, to lose his breath, and consequently his power to support a burden. The negligence of the company was alleged to consist in directing the removal of the rails in a dangerous manner and with an insufficient number of men, and in employing McNutt.

We think the question of McNutt's incompetency may be laid out of the case. He and the deceased had been working together about three weeks, and it would seem that, if his fellow servant's infirmities rendered him unfit for the work, the deceased knew the fact. But, whether incompetent or not by reason of a want of strength, we think the...