Campbell v. Wing

• Decision Date: 21 December 1893
• Citation: 24 S.W. 360
• Parties: CAMPBELL et al. v. WING.
• Court: Texas Court of Appeals

24 S.W. 360

CAMPBELL et al. v. WING.

Court of Civil Appeals of Texas.

December 21, 1893.

Appeal from district court, Anderson county; S. A. McMeans, Special Judge.

Action by G. S. Wing against T. M. Campbell, receiver, and the International & Great Northern Railway Company. From a judgment for plaintiff, defendants appeal. Reversed.

G. H. Gould, for appellants. A. W. Gregg and P. W. Brown, for appellee.

PLEASANTS, J.

This is an appeal from a judgment rendered for appellee against appellants for the sum of $4,000, as damages for injuries received by appellee while in the service of the receiver of said road as fireman upon one of its locomotives. The plaintiff charged in his petition that his injuries were the proximate result of the negligence of the conductor of the train, and that said conductor was, by reason of his intemperate habits, an unfit and unsuitable person for the position of conductor, all of which was known to the defendants, and was unknown to plaintiff. The defense was contributory negligence by plaintiff, negligence of his fellow servants, and the plea of general denial. The evidence shows that the conductor had the reputation of a man who drank to excess. Only one of several witnesses who testified on the subject had ever seen him drunk while on duty, though several testified that they had seen him under the influence of liquor, and one of these had seen him "full" on several occasions, while upon the trains of defendant company. The only evidence tending to establish that he was drunk at the time the plaintiff was injured was the testimony of one Harris, who testified that about 7 o'clock A. M., on the day after the wreck in which plaintiff was injured, the conductor met him, and inquired if he had any whisky, and, from his appearance, witness thought he was then under the influence of intoxicants; while, on behalf of defendant, it was shown by the testimony of the engineer of the train, who was contradicted by no one, that he met the conductor about one hour after the wreck, and conversed with him, and that he was then perfectly sober, as he was some hour and a half before the wreck occurred. The wreck was on the trip from Palestine to the city of Houston, and occurred early in the night of October 7, 1890. The name of the conductor was Al. Ray, and the conductors upon the trains of defendants were employed by his father, the latter being the officer of the company with whom was lodged the power to employ and discharge the conductors of the trains running upon defendants' road. At the time of the trial the road had been returned to its owners, and the receiver discharged, and the receiver had made improvements upon the property, while in his possession, which exceeded in value the amount of the verdict rendered for plaintiff. As the train neared a certain tank, the plaintiff was ordered by the engineer to go on top of the tender, and, when they reached the tank, to fill the boiler with water, and when within a mile or so of the tank the engineer called by signal, the brakeman, and instructed him to cut the two cars next to the tender from the rest of the train, and to hold it while he, with the locomotive and the cars attached to it, could go to the tank and obtain a supply of water, and return to the train. The cars were disconnected by the brakeman as directed, and the engineer,...