East Line & Red River R. Co. v. Brinker

• Decision Date: 16 November 1886
• Citation: 3 S.W. 99
• Parties: EAST LINE & RED RIVER R. CO. <I>v.</I> BRINKER.
• Court: Texas Supreme Court

3 S.W. 99

EAST LINE & RED RIVER R. CO.v.

BRINKER.

Supreme Court of Texas.

November 16, 1886.

Appeal from Hopkins county.

Action for damages for personal injuries alleged to have been received by plaintiff at a point where the defendant's railroad crosses a highway known as the "Sulphur Springs & Pittsburg Road," by reason of the defective condition of the crossing. Plaintiff claimed that in crossing the railroad track on horseback his horse's foot broke through the covering, the horse fell, and threw and injured him. Plaintiff offered evidence that the planks on the crossing were laid too far apart, — three or four inches, — which was objected to by defendant on the ground that, under the pleadings, such a defect as that could not be shown; but the objection was overruled, and the evidence admitted.

One of the jurors had been subpœnaed as a witness for plaintiff, and it was claimed by defendant was in his employ. The verdict was for plaintiff, and a new trial was refused. Defendant appealed.

Whitaker & Bonner, for appellant.

WILLIE, C. J.

The petition charges that the injury complained of occurred through the negligence of the railroad company in failing to prepare, fix, and keep in repair, a good, safe, and substantial crossing over the railroad track at the place where it was crossed by the Sulphur Springs & Pittsburg dirt road; and it further charged that this crossing was defective, rotten, and insufficient. The plaintiff was not bound to set forth in his petition with any great particularity the specific acts of negligence which brought about his injury. Oldfield v. New York R. Co., 14 N. Y. 310; Railroad Co. v. Keely's Adm'r, 23 Ind. 133; State v. Railroad Co., 52 N. H. 528; Noyes v. Turnpike Co., 11 Vt. 536. Under the general allegations made by him as to the failure to prepare, fix, and keep the crossing in repair, and that it was defective and insufficient at the crossing, he could have introduced any evidence he chose as to the rottenness of the plank of which it was in part constructed, without the specific allegation as to this defect. These allegations pointed out the particular place and thing which were insufficient, and needed repair, and it was not necessary to detail their faults and imperfections. A plaintiff is not ordinarily presumed to know the condition of the track, machinery, cars, and equipage of a railroad, so as to specify what particular defect has brought about the disaster by which he is injured. A passenger injured, or a wife whose husband has been killed, in a collision, cannot well know whether it was due to the want of a head-light, the imperfection of a brake, or the incapacity of an engineer. To require them to specify the...