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

• Decision Date: 04 May 1909
• Court: Texas Court of Appeals
• Parties: GALVESTON, H. & S. A. RY. CO. v. WIRTZ.

119 S.W. 324

GALVESTON, H. & S. A. RY. CO. v. WIRTZ.

Court of Civil Appeals of Texas.

May 4, 1909.

Appeal from District Court, Colorado County; Munford Kennon, Judge.

Personal injury action by W. J. Wirtz against the Galveston, Harrisburg & San Antonio Railway Company. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

Baker, Botts, Parker & Garwood and W. B. Garrett, for appellant. Adkins & Green, for appellee.

McMEANS, J.

Appellee, Wirtz, brought this suit against appellant, Galveston, Harrisburg & San Antonio Railway Company, for damages for personal injuries alleged to have been sustained by him while in the service of appellant in the capacity of switchman at Glidden, and on a trial before a jury was awarded a verdict and judgment. Appellee alleged that, while he was engaged in removing a broken drawhead from a car at Glidden by direction of his foreman, he was injured by stepping into a ditch or trench which had been dug across the track for the purpose of draining the railroad yards, and predicated his right to recover on the negligence of the railway company in leaving the trench unfilled, and in not filling and properly tamping the same so as to leave the ground level, and in stopping the car at a point so near the trench as to render the place at which plaintiff was required to work in removing the drawhead unsafe. Appellant denied existence of the trench at that place. On the trial appellee testified to the existence of the trench as alleged by him, and, further, that, when pulling on the draw-head to withdraw it from the casement in which it was fitted, the drawhead yielded suddenly, slipping out toward him a distance of 12 or 14 inches, and that this caused him to step backward, and in doing so his foot went into the trench, and this caused him to lose his balance, so that to keep from falling he had to retain his hold on the drawhead, which was very heavy, and thus to sustain its weight, etc. None of the other witnesses who testified in the case corroborated appellee as to the existence of the trench, but, on the contrary, testified positively that no such trench was there. The issue was thus sharply drawn.

Under this state of facts the court charged the jury as follows: "If you find from the evidence that on the morning of the 10th day of July, 1906, while the plaintiff was attempting to remove the drawhead from the disabled car, the drawhead suddenly partially yielded to the efforts of plaintiff to detach it...