Easton v. Houston & T.C. Ry. Co.

• Decision Date: 01 November 1887
• Parties: EASTON and others v. HOUSTON & T.C. RY. CO. and others, [1]) (MARTIN, Intervenor.)
• Court: U.S. District Court — Eastern District of Texas

32 F. 893

EASTON and others v. HOUSTON & T.C. RY. CO. and others, ^[1]) (MARTIN, Intervenor.)

United States Circuit Court, E.D. Texas.

November, 1887

Petitioner a section hand, was returning to a section house on a hand car, which was run into by a train, and petitioner injured. Held, that as the petitioner at the time of the injury was running a car on the track, he was brought into direct relations with the employees running the train, and they were fellow servants.

Henry Martin was allowed to intervene in this case to claim damages from the receivers for injuries inflicted by a collision upon their railway. The receivers demur and deny, and the matter was referred to a master, who reported that he found that petitioner at the time of the accident was in the employ of the receivers as a day-laborer or section hand; that between 7 and 8 o'clock on the morning of the fourteenth of July 1886, the petitioner, with three other section hands and the master in charge of his section, in due course of employment were traveling on a hand car over said section, returning to the section-house of said section from the city of Austin that when about 200 yards distant from said section-house approaching it, the hand car upon which they were traveling collided with a locomotive running in the opposite direction, and on its way to said Austin, and then being operated by the employes of said receivers, likewise in due course of employment; that the point where said collision occurred was in a curve of said railway; that the view of the track between the hand car and the locomotive was obstructed by a growth of trees near the track, and upon the inner side of the curve, so that those upon the hand car could not see the approaching locomotive until it was within 400 or 480 feet of them, and those operating the locomotive could not see the hand car until within a distance of about 100 yards; that the section master saw the smoke-stack of the approaching locomotive when distant 400 or 480 feet from it, and when the hand car was moving down grade at a speed of between six and eight miles an hour, when he called to and signaled the hands who were operating the car to stop; that the car was struck by the locomotive before it was stopped; that when the engineer on the locomotive first saw the car, about 300 feet distant, the locomotive was running at a speed exceeding 18 miles per hour; that the engineer at once applied the air-brakes, and used all means to stop the locomotive, but was unable to do so, but did reduce its speed before it came in contact with the car; that at the time of the collision the section master was sitting on the front of the car, while petitioner and his fellow-workmen were 'pumping' the lever by which the car was propelled, petitioner and one other workman being at the rear end of the lever, his face in the direction in which the car was moving, the other two section hands being at the forward end of the lever; that when the section master gave the alarm the men upon the car, except petitioner, jumped therefrom to save themselves; that almost immediately the collision occurred; so quickly that, as one witness testifies, the tools carried upon the car were thrown in the air by the force of the collision about the time he reached the ground; that the whistle of the locomotive was several times sounded as it crossed highways within a mile of the section house, the last time about 400 yards from the point of collision; that the whistle was not sounded when the car was discovered, as the fireman from his position on the locomotive could not reach the whistle lever, and both hands of the engineer were engaged in applying the checking apparatus of the locomotive, but that the fireman rang the locomotive bell; that the wind was blowing from the car towards the locomotive, and those upon the car did not hear the bell or any of the whistle alarms; that petitioner did not see the locomotive, did not hear the call of the section master or see his signal to stop, did not see the men jump from the car,-- in fact, did not see or become aware of any of the occurrences aforesaid; that when the car was struck, petitioner was thrown a distance of about 40 feet, and about as high as the smoke-stack of the locomotive, and did not 'know anything' until he found himself lying several hours thereafter upon the gallery of the section-house aforesaid; that the engineer in charge of the locomotive which collided with the hand car as aforesaid was guilty of negligence in...