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

• Decision Date: 27 June 1899
• Citation: 53 S.W. 81
• Parties: GALVESTON, H. & S. A. RY. CO. v. JACKSON.<SMALL><SUP>1</SUP></SMALL>
• Court: Texas Court of Appeals

53 S.W. 81

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

Court of Civil Appeals of Texas.

June 27, 1899.

Appeal from district court, Bexar county; J. L. Camp, Judge.

Action by Solomon Jackson against the Galveston, Harrisburg & San Antonio Railway Company. There was a judgment for plaintiff, and defendant appeals. Affirmed.

Upson, Bergstrom & Newton, for appellant. T. M. Watlington and J. A. Buckler, for appellee.

JAMES, C. J.

The appellee, Solomon Jackson, brought this suit to recover $5,000 damages which he alleged he sustained by reason of the fireman on one of appellant's trains jumping from the train and striking against him and breaking his leg. The appellant pleaded a general denial, and in addition thereto that, if appellee was injured in the manner alleged in his petition, it was through the negligence and carelessness of a fellow servant. The case was tried before a jury, and the trial resulted in a judgment in favor of appellee for $1,200, from which judgment this appeal is prosecuted.

This is the third time that this case has been before this court. The first appeal was from a judgment in favor of the present appellant, dismissing the appellee's petition on demurrer. The opinion in that case will be found in 37 S. W. 786. The majority of the court held that the petition stated a good cause of action, and on a certificate of dissent the case went to the supreme court, and by it the judgment of the majority of the court was upheld. The opinion of the supreme court is reported in 90 Tex. 372, 38 S. W. 745. The second appeal was from a judgment in favor of the present appellee. That judgment was reversed by this court because an issue was submitted by the charge of the district court to the jury which was not raised by the pleadings. 44 S. W. 1072. Before the trial which resulted in the judgment now appealed from, the appellee amended his pleadings so as to raise such issue. The nature and character of the suit will be more fully understood by referring to the decisions on the other appeal.

The fifth assignment urges that the court erred in permitting the witness Solomon Jackson to testify that on the way from the depot to the hospital, after arriving in San Antonio, the fireman, Thornton McCormick, told him that when he saw the signal of the section foreman, Daily, he thought the track was up, and left the engine. The ground for the exclusion of this testimony was that it was immaterial, irrelevant, and hearsay. The testimony was admissible. Each party took and introduced the deposition of McCormick. In the deposition taken and introduced by defendant, McCormick stated that he had no recollection of stating to the plaintiff at any time that he saw Daily signaling the train, and that they caused him to think that a rail was up or that the track was out of repair, and caused him to jump from the engine. In view of this, it was certainly proper to allow plaintiff to give the above testimony.

There was evidence of the following facts: That a slow-up signal was given by the flagman sent out by the section foreman; that this signal was seen by McCormick, the fireman, who jumped from the moving train, striking and injuring plaintiff in his fall; also, that a slow-up signal was given by the foreman, which signal was seen by McCormick before he jumped; that the train was not sufficiently equipped with brakes to slow it up in obedience to such signal or signals. There was also testimony of negligence of the flagman in giving a stop signal, when he had been directed to give a slow-up signal. We conclude that the evidence showed defendant's negligence,—in the flagman failing to obey the order given him concerning the signal, in the engineer not observing and acting on the signals given, and in the condition of the brakes on the train; and we conclude further that McCormick, through such act or acts of negligence, became alarmed for his safety, and jumped from the train.

The court did not err in not submitting issues founded upon the theory of fellow servant.

The second assignment complains of the following clause of the charge: "If you find from the evidence in this case that at the time the plaintiff, Solomon Jackson, was injured in the employ of defendant, a flagman or the section foreman signaled the train to stop or to slow up before it reached the place where the plaintiff was standing, and the signal was given in time for the said train to have stopped or slowed up before it reached said place, and that the engineer in charge of said train saw said signal (whichever was given, if either), and failed to obey it by stopping said train or slowing it up, or negligently failed to see the said signal, and on that account failed to stop said train or to slow it up, or, having seen the signal, attempted to stop said train or slow it up, but was unable to do so before it reached the place where the plaintiff was standing, on account of there not being a sufficient number of brakes on the train, should you find that there were not a sufficient number on it, to enable the persons in charge of the train to stop it or slow up with ordinary promptness, and that such failure to stop said train or slow it up was negligence, and that the same was the proximate cause of the plaintiff's injury, and you further find that the fireman on the said engine, Thornton McCormick, saw said signal (whichever was...