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

• Decision Date: 28 January 1901
• Citation: 60 S.W. 543
• Parties: GALVESTON, H. & S. A. RY. CO. v. KIEFF.
• Court: Texas Supreme Court

Page 543

60 S.W. 543

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

Supreme Court of Texas.

January 28, 1901.

Error to court of civil appeals of Fourth supreme judicial district.

Action by Edmund Kieff against the Galveston, Harrisburg & San Antonio Railway Company. A judgment in favor of plaintiff was affirmed by the court of civil appeals (58 S. W. 625), and defendant brings error. Reversed.

Upson, Newton & Ward, for plaintiff in error. Webb & Finley, for defendant in error.

GAINES, C. J.

This action was brought by James Kieff, as next friend of Edmund Kieff, against the Galveston, Harrisburg & San Antonio Railway Company, to recover damages for personal injuries. The plaintiff recovered a judgment, which was affirmed upon appeal. The following facts, except as to the immediate manner of the accident, appear by the uncontroverted testimony in the case: On the day of the accident the foot of the plaintiff, a lad then 13 years of age, was run over, and his big toe crushed, by a car of the defendant. The car which caused the accident was a flat car, which was loaded with material for the construction of a fence around defendant's yard, and had been put in position by an engine and left upon the track for convenience in constructing the fence. The work was intrusted to a gang of laborers, five in number, according to the evidence of the defendant, and not more than six or seven as testified to by the plaintiff and his witnesses. The manner of doing the work was for the workmen to push the car along the track to the point or points where it was to be unloaded. The parents of the plaintiff resided at a place about 240 feet south of the track. Just before the accident, the plaintiff was on the north side of the track, six or seven feet from the car. He started across the track to go to his home, and just before or about the time he did so the car was set in motion by being pushed along by the men who were engaged in constructing the fence. According to the testimony, the speed at which it could have been pushed did not exceed one mile per hour. The plaintiff himself testified: "I was 6 or 7 feet from the flat car. I mean the one by which I was hurt. My mother called me, and I wanted to go home, and as I was half way across [the track] the Mexicans pushed the flat car on me, and knocked me over, and my foot caught in the wheel, and they pushed the car on. I saw the Mexicans coming down from the other car, but I did not know what they were going to do. When I started across the track, the car was not moving at all. I did not know the Mexicans were going to push the car. When the Mexicans pushed the car, they were all back of the flat car. No one was on the front part of the flat car." And again, upon cross-examination, "The car was being moved by the men,—shoved along slightly." A witness for defendant also testified without contradiction that the material which was upon the cars and which was used for the construction of the fence consisted of "4 by 6 cypress posts and 1 by 6 and 1 by 8 pine. This material was loaded in both box and flat cars. We had some men there building the fence. The cars were originally brought up there in the yard by steam, but after they were got there they were moved by hand. The flat...