Freeman v. Kane

• Decision Date: 21 December 1910
• Citation: 133 S.W. 723
• Parties: FREEMAN v. KANE.<SMALL><SUP>†</SUP></SMALL>
• Court: Texas Court of Appeals

133 S.W. 723

FREEMAN v. KANE.^†

Court of Civil Appeals of Texas.

December 21, 1910.

Rehearing Denied January 25, 1911.

Appeal from District Court, Bexar County; Edward Dwyer, Judge.

Action by T. J. Kane against T. J. Freeman, as receiver of the International & Great Northern Railroad Company. From a judgment for plaintiff, defendant appeals. Affirmed.

King & Morris and Hicks & Hicks, for appellant. H. C. Carter and Perry J. Lewis, for appellee.

FLY, J.

This is a suit for damages arising from personal injuries, instituted by appellee against T. J. Freeman as receiver of the International & Great Northern Railroad Company. The injuries, it was alleged, were received by appellee while in discharge of his duties as a switchman in the yards of appellant, in San Antonio, Tex., on or about June 17, 1908. The cause was tried by jury and resulted in a verdict for $20,000, and in a judgment in favor of appellee for $15,000.

The evidence justifies the conclusions that appellee was seriously and permanently injured through the negligence of appellant's engineer in failing and refusing to obey a stop signal, which was given him, while he was engaged in moving cars on a switch. The cars were struck with such violence as to shove two or three of them off the end of the track, causing appellee to fall off the car on which he was riding in discharge of his duties as a switchman, and receive injuries in his feet, stomach, and face.

It was alleged that appellee was a switchman and was engaged in his duty of assisting in switching cars, the part of the petition charging negligence being as follows: "Plaintiff avers that heretofore, on June 17, 1908, he was in the employ of the defendant as a switchman in the yards in San Antonio, Tex.; that on said date, while he was engaged in the performance of his work as a switchman and while on the top of a freight car, by reason of negligence and carelessness of the employés in charge of the locomotive propelling said cars, as hereinafter stated, the said cars were wrecked and derailed and in said wreck and derailment plaintiff sustained serious, permanent, and painful injuries as hereinafter more fully set out. Plaintiff further avers that at the time and just prior to said wreck and derailment some freight cars were being placed in one of the tracks in defendant's said yard, known as Lucas No. 1; that said track stopped and ended at Monterey street and at the end of said track was a telegraph pole placed in the ground; that said cars so being placed in said track were being moved and propelled by a switch locomotive, and said switch locomotive was in charge of and was being operated by an engineer and fireman, who were in the employ of the defendant. Plaintiff further avers that it was the duty of said employés in charge of said locomotive, in placing said cars in said track, Lucas No. 1, to stop them before they got to the end of said track, and to so place them that they would not become derailed or come in contact with said telegraph pole, and plaintiff avers the fact to be that said employés in charge of said locomotive so negligently propelled and moved said cars that they did not stop them when they reached the end of said track, but caused said cars to run beyond the end of said track and thereby become derailed, and to come into such violent contact with said telegraph pole that it was torn from the ground and knocked down. Plaintiff further avers that said employés in charge of said locomotive were signaled to stop said...