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

• Decision Date: 12 December 1894
• Citation: 29 S.W. 950
• Parties: GALVESTON, H. & S. A. RY. CO. v. NORRIS.
• Court: Texas Court of Appeals

29 S.W. 950

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

Court of Civil Appeals of Texas.

December 12, 1894.

Appeal from district court, Bexar county; W. W. King, Judge.

Action by William T. Norris against the Galveston, Harrisburg & San Antonio Railway Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Upson & Bergstrom, for appellant.

FLY, J.

The basis of this suit is personal injuries inflicted on appellee in a wreck which occurred at the railroad bridge on the Sabinal river on the night of August 9, 1892. The petition alleges that appellee was at the time of the wreck in the employ of appellant; that on the date named above he was ordered to take passage upon a freight train, and report at San Antonio; that, in obedience to said order, he took passage on the freight train; that when the train was near the Sabinal bridge the car in which appellee was riding was derailed, and dragged about 100 yards along the track, and hurled against the bridge, one span of which went down, precipitating the car into the bed of the river, by reason of which great physical pain and mental agony was suffered by appellee, and he received permanent injuries, which rendered him incapable of attending to business. It was further alleged that $300 was expended for medicines, nurses, and physicians; that the proximate cause of the injuries was the defective condition of the railroad track, roadbed, road crossing, cattle guards, and one span of the bridge; that appellee had no knowledge of the defects; that just west of the Sabinal river there is a deep cut made through a hill and steep grade, having a descent of half a mile or more; that there were no ditches in the cut, or through it, to carry off the water that would gather during a rain storm; that the engineer was incompetent, and was grossly negligent in running the train at great speed over a track covered with water; that the planks at the crossing on the railroad near the bridge were not fastened down, and were floated upon the track by the water, and derailed the car, that appellee was a young man, about 30 years old, healthy and strong, and was earning prior to his injuries from $80 to $100 per month, but since the injury had been rendered incapable of earning anything. The damages were placed at $30,800. Appellant answered by special exception, that the petition was insufficient, in not setting forth specifically the defects in the bridge, track, etc., and by a general denial, and special pleas that appellee was not a passenger, but its employé that the injury was caused by the negligence of a fellow servant; that, if the road and bridge were defective, appellee had knowledge of the same, and assumed the risks and hazards of the same; and that the accident was caused by an unprecedented rainfall, and the injury resulted from an act of God, for which appellant was not responsible. The exceptions were overruled, the case was tried by a jury, and a verdict returned and judgment rendered for $5,000.

We conclude that the record establishes the following facts: Appellee in company with several other employés of appellant, on August 9, 1892, in obedience to orders received from appellant boarded a caboose attached to a freight train belonging to appellant, and started from Del Rio to San Antonio. Appellee went to bed at Kline Station, and went to sleep, and, when he awoke, was down in the wreck in the Sabinal river. He received a wound in the thigh five inches long and half an inch deep; his head was cut, breast bruised, and spine injured; and he was totally incapacitated for labor. Prior to the wreck, appellee was earning and receiving from $80 to $100 per month. His doctor's bills were from $40 to $50, and for nurses and medicines he paid $32. Appellee was not working at the time of the accident, and had nothing whatever to do with the train on which he was riding, except to be carried by it to San Antonio. He was, however, receiving pay while passing from one point to another, and was subject to the orders of appellant. He was not a member of the crew of the train on which he was riding. On the night of the wreck it was raining, and when the train approached the road crossing no whistle was blown or bell rung; and the engineer, in a reckless and grossly negligent manner, ran the train into the cut, where the track, for a long distance, was under water, at a high rate of speed. No ditches had been prepared to carry off the water in the cut, and it was filled with water over the tops of the rails. The planks at the road crossing were not properly fastened, and were floated on to the track, and derailed the caboose in which appellee was riding, which caboose ran along on the cross-ties until it reached and struck the west span of the bridge, which collapsed, and precipitated the car into the bed of the river, and appellee was seriously and permanently injured. We find that the accident was the result of the recklessness of the engineer, and the negligence of the railroad, in failing to properly ditch its track, and in not properly constructing its roadbed and crossing. There is no complaint of the amount of the verdict, nor of the sufficiency of the evidence, except as to the defects charged in the petition. The rain was not an extraordinary one, and the wreck was not caused by the act of God. The petition is full and explicit, in stating a cause of action, and in showing the defects in the track, roadbed, road crossing, cattle guards, ditches, and bridge, and it was not error to overrule the exceptions to it.

Under the heading, "Third Assignment of Error," the following is copied into the brief of appellant: "The court erred in giving to the jury the first subdivision of its charge, which is as follows: `If you believe from the evidence that during a rain storm on or about the 9th of August, 1892, that a wreck occurred on defendant's line of railway, at or near the defendant's bridge across the Sabinal river, in Uvalde county, and that in said wreck, in said storm, the plaintiff was injured as charged in his pleadings; and if you further believe from the evidence that the defendant company had no track walker or sectionmen out on the track during said storm, to guard against accidents; and if you further believe from the evidence that the engineer in charge of the engine that was attached to and pulling said train continued to run said train during said storm, and ran said train over the track of defendant company, while the same was under water, at a great speed, without stopping to examine the said track and ascertain its condition, and its condition could be seen by him in time to stop the train, and while so running the train was derailed by plank and timbers that had floated on the track, and that in said acts on the part of said company and its employés the said company was guilty of negligence, as defined in this charge; and if you further believe from the evidence that the negligence, if any, on the part of defendant company and its employés was the proximate cause of the plaintiff's injury,—then and in that event you will find a verdict for the plaintiff, as hereinafter charged,'—because the court assumes, and instructs the jury, that the facts therein stated constitute negligence, and that question should have been submitted to the jury. First. Because the court, in said charge, states that the plaintiff is entitled to recover for the said acts on the part of said company and its employés, if the said company was guilty of negligence as defined in this charge, and negligence is nowhere defined, except that the acts set out and described in the first subdivision are...