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

• Decision Date: 28 May 1902
• Citation: 69 S.W. 233
• Parties: GALVESTON, H. & S. A. RY. CO. v. JENKINS.<SMALL><SUP>1</SUP></SMALL>
• Court: Texas Court of Appeals

69 S.W. 233

GALVESTON, H. & S. A. RY. CO. v. JENKINS.¹

Court of Civil Appeals of Texas.

May 28, 1902.

Appeal from district court, Uvalde county; I. L. Martin, Judge.

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

Baker, Botts, Baker & Lovett, and Ellis, Garner & Love, for appellant. Ball & Fuller and Taliaferro & Armstrong, for appellee.

FLY, J.

Appellee instituted this suit to recover damages arising from personal injuries alleged to have been sustained through the negligence of appellant. The trial resulted in a verdict and judgment for appellee in the sum of $10,000. The facts established that appellee was a telegraph operator at Uvalde, Tex., and went out on the tracks near the depot to deliver instructions to the engineer of train No. 244, which was on a siding, and after doing so stepped backwards on the main track, where he was negligently struck by one of the locomotives attached to train No. 243, and injured in the amount found by the jury. The engineer of train 243 saw appellant in time to have given him warning of the approaching train, but failed to blow the whistle or ring the bell on his locomotive. Appellee was not guilty of contributory negligence.

The first assignment of error is without merit. There was no contest as to what the rules of the company were as to signals, and no possible injury could have resulted from the testimony of appellee as to the rules.

The second assignment of error complains of the admission of evidence to the effect that "double-header" trains make much more noise than single locomotives. The two trains were what are denominated "double-headers,"—that is, each was drawn by two locomotives,—and the evidence was doubtless introduced to show that appellee could not hear the approaching train because of the excessive noise made by the four engines. The evidence had no tendency to show the negligence of appellant in using the "double headers," but to account for the conduct of appellee in stepping on the track in front of the locomotive. The court instructed the jury not to consider the fact that the trains were attached to two locomotives as any ground of negligence.

The proposition under the third assignment of error complains of the seventh charge of the court, because it was upon the weight of the evidence, and assumed that appellee was backing towards the depot when struck. The charge is as follows: "If the jury believe from the evidence that the plaintiff, who was in the employ of the defendant as a telegraph operator at the Uvalde station, was directed by the train dispatcher of the defendant to leave his office and go out and deliver to the officers of train No. 244, going east, a clearance order, then you are charged that the defendant company owed the plaintiff the duty to exercise ordinary care to prevent injury to him while so engaged in the performance of such duty, if any; and if the jury further believe from the evidence that the plaintiff, in obedience to said order, if he was so ordered, without negligence on his part, left his office to hand to the engineer of the train No. 244 said clearance order, and that he, after having done so, as he was backing in the direction of the depot, train No. 243 came in from the...