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

• Decision Date: 07 February 1900
• Parties: GALVESTON, H. & S. A. RY. CO. v. ADAMS.<SMALL><SUP>1</SUP></SMALL>
• Court: Texas Court of Appeals

55 S.W. 803

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

Court of Civil Appeals of Texas.

February 7, 1900.

Error from district court, Harris county; William H. Wilson, Judge.

Action by T. T. Adams against the Galveston, Harrisburg & San Antonio Railway Company. From a judgment in favor of plaintiff, defendant brings error. Affirmed.

Baker, Botts, Baker & Lovett and A. L. Jackson, for plaintiff in error. A. C. Allen, Edgar Watkins, and Frank C. Jones, for defendant in error.

FLY, J.

This is an action for damages instituted by T. T. Adams against the Galveston, Harrisburg & San Antonio Railway Company for damages in the sum of $30,000, resulting from personal injuries inflicted through the negligence of the railway company. A trial by jury resulted in a verdict and judgment for defendant in error in the sum of $15,000. We find that defendant in error received severe and permanent injuries through the negligence of plaintiff in error. Defendant in error was the conductor of a freight train belonging to plaintiff in error, and, coming in from a trip, ran his train into the yard limits in Houston. The train reached a place where it could not be moved by the locomotive attached to it, and defendant signaled an engineer on a locomotive belonging to the San Antonio & Aransas Pass Railway Company to couple to the rear of the caboose. This was done, and signal given to the engineer of plaintiff in error to proceed, and he did so. After proceeding a short distance, and while defendant in error was endeavoring to uncouple the locomotive from the caboose, the air brakes were negligently applied without warning, and the platform of the caboose gave way by reason of rotten timbers, and defendant in error had his leg crushed so that it had to be amputated.

The first assignment of error is without merit. There was evidence to the effect that the caboose furnished by plaintiff in error was defective, and that the injury was incurred by reason of such defect, and the charge properly submitted the issue. There is no merit in the proposition that the timbers of the platform were not timbers of the caboose. It was in proof that the platform was an essential part of the caboose, although it would seem that this fact might have been assumed without testimony.

The defects in the platform were latent, being covered with paint, and the servant could well assume that it was safe. Railway Co. v. Crenshaw, 71 Tex. 340, 9 S. W. 262; Dillingham v. Harden, 6 Tex. Civ. App. 474, 26 S. W. 914; Goodrich v. Railroad Co. (N. Y.) 22 N. E. 397, 5 L. R. A. 750; Shear. & R. Neg. §§ 216, 217. It follows that it was not error to give the charge of which complaint is made in the second assignment of error. It was not the duty of the defendant in error to inspect the platforms of cabooses; and the case of Railway Co. v. McNamara, 59 Tex. 258, is therefore not in point.

It was in evidence that signals were given by the conductor and by the whistle of the locomotive of the San Antonio & Aransas Pass Railway Company, and that they were...