Evans v. Sabine & E. T. Ry. Co.

• Decision Date: 29 January 1892
• Citation: 18 S.W. 493
• Parties: EVANS v. SABINE & E. T. RY. CO.
• Court: Texas Supreme Court

18 S.W. 493

EVANS v. SABINE & E. T. RY. CO.

Supreme Court of Texas.

January 29, 1892.

Appeal from district court, Hardin county.

Action by William Evans against the Sabine & East Texas Railway Company. From a judgment for plaintiff, defendant appeals.

Tom J. Russell, for appellant. Perryman & Gellaspie, for appellee.

GAINES, J.

This suit was brought originally by appellant against both the Sabine & East Texas Railway Company and the Southern Pacific Company to recover damages for personal injuries. A demurrer to the original petition was interposed by both defendants. That of the Southern Pacific Company was overruled, but that of the other defendant, the appellee in this court, was sustained. The plaintiff thereupon took leave to amend, and filed an amended petition, which, in effect, abandoned the suit as to the Southern Pacific Company, but asked judgment against the other defendant. The court sustained a demurrer to the amended petition, and, the plaintiff having declined to amend further, dismissed the suit. The correctness of the court's ruling upon the demurrer to the amended petition is the question for our determination.

The plaintiff alleged, in substance, that the defendant the Sabine & East Texas Railway Company owned a line of railroad which it had leased to the Southern Pacific Company, and which was operated by the latter company; that at a certain station, where there was a saw-mill, the mill-owners had constructed a platform for the purpose of loading lumber which was so near the railroad track that it did not permit of a man's standing safely between the platform and the track while a train was passing; that he was in the employment of the Southern Pacific Company as a brakeman, and that it was his duty to couple and uncouple cars; that, while a train upon which he was so employed was at the station, it became his duty to assist in coupling two cars which were standing opposite the platform; that, on account of the construction of the couplers of the respective cars, two men were required to effect the coupling, — the one upon the one side of the cars, and the other upon the other; that, as was his duty, he went in between the cars on the side next to the platform; and that while engaged in making the coupling the train was run so that it became necessary for him, in order to prevent his being run over, to get from between the cars, and to place himself between the train and platform, where, by reason of their close proximity...