Galveston, H. & S. A. Ry. Co. v. Averill

• Decision Date: 08 March 1911
• Citation: 136 S.W. 98
• Parties: GALVESTON, H. & S. A. RY. CO. v. AVERILL.<SMALL><SUP>†</SUP></SMALL>
• Court: Texas Court of Appeals

136 S.W. 98

GALVESTON, H. & S. A. RY. CO. v. AVERILL.^†

Court of Civil Appeals of Texas.

March 8, 1911.

On Motion for Rehearing, April 12, 1911.

Appeal from District Court, Val Verde County; W. C. Douglas, Judge.

Action by H. Averill against the Galveston, Harrisburg & San Antonio Railway Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Baker, Botts, Parker & Garwood, W. B. Teagarden, and Boggess & Davidson, for appellant. Joseph Jones and Geo. M. Thurmond, for appellee.

JAMES, C. J.

This was an action for damages; plaintiff, Averill, claiming that, while working as brakeman in defendant's service, he was crushed between cars, which occurrence was due to the fact that his fellow servants negligently caused the cars to close together while he was adjusting the coupling appliances.

Plaintiff alleged negligence as follows: (1) That at the time he went in between the cars to effect the coupling the train was at a standstill, and it was the engineer's duty to not move the engine except upon a signal from plaintiff, either direct or repeated to the engineer by a member of the train crew in position to see and know the position and movements of plaintiff. That plaintiff did not give, nor direct the giving of any such signal; but the engineer negligently put in motion his engine, and the cars thereto moved backward with great force against plaintiff. And that, if the engineer received a signal from any employé to move the engine and cars backward, such signal was improperly and negligently given without any direction from plaintiff and was improperly taken and acted upon by the engineer. (2) That defendant was further negligent in having in said train cars to be coupled that were defectively constructed, that the knuckles of the coupling apparatus were old, worn, and out of repair so that they would not close automatically by impact, which necessitated plaintiff's going between the cars to make the coupling, and while he was performing this duty between the cars defendant's employé in charge of the engine negligently caused or permitted the train to be suddenly thrust backward, with the result aforesaid. (3) That defendant was negligent in that the coupling apparatus was shorter than the usual and customary and safe way of constructing such coupling, which rendered it dangerous to employés whose duty it was to work between the ends of the cars, in that they permitted the ends of the cars to come so close together when being coupled as to injure any one who might be on duty between them. (4) In permitting the truss rods bolts to project out from the end of the cars so far as to reduce the space between said cars when they were pressed together in making the coupling and thus causing plaintiff's injuries. There was a verdict for plaintiff for $5,000.

The first and second assignments of error complain of the overruling of exceptions to the petition. The proposition under the first indicates sufficiently the point intended to be made, as follows: "The petition was not sufficiently specific, because it did not point out what parts of the coupling appliances were defective, which caused them to fail to couple by impact, so as to inform defendant what it would have to meet, and so that it might be made to appear from the pleadings, otherwise than from legal conclusions that the defects were of such a nature as would prevent coupling by impact and such as necessitated his going between the cars, as he claimed." We think there was no error in overruling the exception. Railway v. Templeton, 87 Tex. 42, 26 S. W. 1066; Railway v. Brinker, 68 Tex. 502, 3 S. W. 99; Railway v. Abbey, 29 Tex. Civ. App 211, 68 S. W. 293; Railway v. Beauchamp, 116 S. W. 1165.

The second assignment is: "The petition in all the part wherein it is charged that his injuries resulted from, or were contributed to by, the negligence of other employés, is insufficient for want of particulars to show the name of the employé who was guilty of such negligence, the capacity in which he acted, what he did that was negligent in connection with the accident, and how his conduct caused or contributed to the accident." Appellant's proposition under the assignment merely contends that the names of the other employés should have been stated. There certainly was no necessity for naming the engineer, who was identified by his position. As to the other member of the crew, the petition does not allege that any one intervened in conveying a signal to the engineer, but alleged that if any one did so, it was not by direction of plaintiff. This did not involve any knowledge by plaintiff of whom such person was, if any one. Besides, we are of opinion that it was not necessary for defendant to have such information from the petition in order to properly make its defense of this case.

There was no error committed by the court in charging that: "By proximate cause, as used in this charge, is meant the direct cause, without which the injury would not have...