Ely v. San Antonio & A. P. Ry. Co.

• Decision Date: 11 March 1897
• Court: Texas Court of Appeals
• Parties: ELY v. SAN ANTONIO & A. P. RY. CO.<SMALL><SUP>1</SUP></SMALL>

40 S.W. 174

ELY v. SAN ANTONIO & A. P. RY. CO.¹

Court of Civil Appeals of Texas.

March 11, 1897.

Appeal from district court, De Witt county; S. F. Grimes, Judge.

Action by G. E. Ely against the San Antonio & Aransas Pass Railway Company Judgment for defendant. Plaintiff appeals. Affirmed.

Price & Green and Rud Kleberg, for appellant. Proctors, for appellee.

PLEASANTS, J.

Appellant was in the service of the appellee as car coupler in its yard in the town of Yoakum, and this suit was brought to recover damages for personal injuries received by appellant while in the discharge of his duties, through an alleged negligence of his employer. The defendant demurred generally and specially to the petition, and all of the demurrers were sustained; and, plaintiff declining to amend his petition, his suit was dismissed, and from that judgment he appealed to this court.

The substance of the petition is thus given by appellant in his statement under his seventh and eighth assignments of error: In plaintiff's original petition he complains of appellee, and represents that he resides in the county of Lavaca and state of Texas, and that "defendant is a corporation duly incorporated under the laws of this state, owns and operates a railroad which extends into and through the county of De Witt, in which county, at the city of Cuero, it has a business office, and is represented by a local agent. Plaintiff alleges: That on, to wit, April 14, 1895, he was in the employ of the defendant as switchman in the railroad yard in the city of Yoakum, Texas, and, while engaged in Lavaca county part of said yard, in the actual and ordinary discharge of his duties, he received, without fault or negligence on his part, the following hurts and injuries, all of which are serious, and many which are permanent: [Appellant specifically alleges said injuries.] The said hurts and injuries were received under the following circumstances: Plaintiff was attempting to couple an empty flat car to a flat car loaded with iron rails, said loaded flat car being then and there pushed by an engine towards said empty flat car, which was one of five cars coupled together, the furthest one of which from plaintiff was locked by having its brakes set. That a rail was obliquely projecting about four or six feet over and beyond the front end of said loaded car. Plaintiff stood with said stationary car, and prepared to make said coupling. That said projecting rail struck the end of the bed of said stationary flat car, and, as said engine pushed said loaded car nearer to the said flat car, said rail gently slid back, or rather said rail remained stationary, and permitted said flat car to approach nearer. That, when said loaded car had moved up so that the rear end of said rail was a few inches further back in said car than it was before its front end struck said empty flat car, said rear end of said rail struck a stake or standard in the side of the said loaded car, which momentarily checked the approach of said loaded car, whereupon said stake broke, and the empty flat car rebounded violently and suddenly towards plaintiff, and at the same time said loaded flat car was propelled suddenly and violently towards plaintiff, and said drawheads of said two flat cars came together with such a terrible and sudden jar and force that plaintiff's right hand and the fingers and thumb thereof and his right arm were caught between said drawheads, and were crushed, mangled, and injured as before set out. That the end of the said flat car over which said rail was obliquely projecting was about three or four inches lower than the end of said stationary flat car, to which plaintiff was attempting to make the said coupling, and that said difference in height was not known to plaintiff, and was not great enough to be noticeable to plaintiff at said time, plaintiff's attention being necessarily occupied in attempting to make said coupling. That, if the said two flat cars had been of the same height, the projection of the said iron rail would have gently slid over the bed of the said empty flat car. That said loaded flat car was at said time and place carelessly and negligently loaded, in having said projecting rail placed obliquely upon the bed of said car, whereas said rail, as well as all of said rails, should have been placed straight, so that the ends of none of them would have come in contact with the stakes of said car. That said rail's uneven and oblique position upon said flat car caused said rail's rear end to strike against said stake, which broke, and thereupon came the sudden and violent rebounding of said car, and the coming together of the two drawheads, whereby plaintiff was injured. That the plaintiff did not discover that said projecting rail was obliquely projecting until after he had received said hurts and injuries, but that same appeared to plaintiff to be lying straight upon and even with the bed of said car, and to be projecting straight, and not obliquely. That all the time he was trying to make said coupling he acted in a careful and prudent manner, and he would not have received said hurts and injuries if the said ends of the said two cars which plaintiff was trying to couple together had been of the same height, as they ought to have been, in which case the projection of the said iron rail would have gently slid over and along the bed of the said empty flat car, and...