Dooley v. Missouri, K. & T. Ry. Co. of Texas

• Decision Date: 18 April 1908
• Citation: 110 S.W. 135
• Court: Texas Court of Appeals
• Parties: DOOLEY v. MISSOURI, K. & T. RY. CO. OF TEXAS.

110 S.W. 135

DOOLEY v. MISSOURI, K. & T. RY. CO. OF TEXAS.

Court of Civil Appeals of Texas.

April 18, 1908.

Rehearing Denied May 9, 1908.

Appeal from District Court, Hill County; W. C. Wear, Judge.

Personal injury action by W. F. Dooley against the Missouri, Kansas & Texas Railway Company of Texas. Judgment for defendant, and plaintiff appeals. Reversed and remanded.

Collins & Cummings and Chas. L. Black, for appellant. Ramsey & Odell, for appellee.

RAINEY, C. J.

This is a damage suit brought by appellant against the appellee to recover for personal injuries alleged to have been inflicted on him by the negligence of the appellee while appellant was engaged in unloading a car of fruit on appellee's track by violently propelling other cars against the one he was in, which caused him to fall, and crates of peaches to fall on him.

It was alleged that plaintiff was at work unloading a car of fruit that had been placed on a side track used for the purpose of unloading, and while he was in the car engaged in unloading the same appellee's servants negligently propelled an engine and cars attached thereto against said fruit car with such violence that the collision threw him down and caused crates or boxes of peaches that were stacked up therein to fall on and injure him. The court in one paragraph of its charge instructed the jury: "That unless you believe from a preponderance of the evidence the defendant, its agents, servants, or employés knew that the plaintiff was in said car, or by the exercise of ordinary care, could have known that he was in said car, you will find a verdict in favor of the defendant, even though you may believe that the engine and cars were negligently handled by defendant's servants and employés, and that in handling the same they were guilty of negligence." This charge, we think, does not present the law in such cases. The plaintiff was not a trespasser, but was lawfully in the car on the track, and it was the duty of the appellee to so operate its cars as not to injure the appellant. At least it was its duty not to be guilty of negligence. Railway Co. v. Thomas (Tex. Civ. App.) 107 S. W. 868. Mr. Thompson, in his excellent work on Negligence, vol. 2, § 1841, states the rule thus: "Where the shippers or consignees of car loads of freight assume the task of loading or unloading the cars on the side track of the company with its consent, express or implied, the company is not at liberty to act toward them or their servants as...