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

• Decision Date: 23 February 1916
• Docket Number: (No. 5607.)
• Citation: 184 S.W. 327
• Parties: GALVESTON, H. & S. A. RY. CO. v. MOSES.<SMALL><SUP>*</SUP></SMALL>
• Court: Texas Court of Appeals

184 S.W. 327

GALVESTON, H. & S. A. RY. CO. v. MOSES.^*

(No. 5607.)

Court of Civil Appeals of Texas. San Antonio.

February 23, 1916.

Rehearing Denied March 22, 1916.

Appeal from District Court, Bexar County; R. B. Minor, Judge.

Action by A. N. Moses against the Galveston, Harrisburg & San Antonio Railway Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Baker, Botts, Parker & Garwood, of Houston, and Templeton, Brooks, Napier & Ogden and Ed W. Smith, all of San Antonio, for appellant. D. Fred Worth and John Sehorn, both of San Antonio, for appellee.

CARL, J.

Appellee sued appellant for personal injuries inflicted on him by reason of the derailment of a car, No. 127, belonging to the Lone Star Brewing Association. The derailment occurred on the switch or track which runs from appellant's east yards in the city of San Antonio to the brewery between Burleson and Lamar streets. The alleged defects in the car and grounds of negligence will fairly appear from the following paragraph, No. 4, of the plaintiff's petition:

"That the bolster, trucks, center bearings, side bearings, wheels, axles and all the running gear of said car were out of order and defective, and would not operate and perform the functions of said parts and running gear properly, and by reason of the said defective condition of the said parts and the running gear the trucks of the said car would not operate so as to permit the wheels of said car to follow and remain on the rails, but the said trucks of the said car were caught and held too rigidly, and as a consequence thereof the wheels of said trucks were prevented from adjusting themselves to suit the different conditions and changes in the curvature and elevation of the track, rails, and switches at the point where the said derailment occurred, and were prevented from following and remaining on the rails, and the said wheels were thereby caused to leave the rails and become derailed; that the defendant was negligent in permitting this condition, and in operating said car while in such defective condition, which said negligence caused, and directly contributed to produce and cause said derailment and plaintiff's injuries. Plaintiff alleges that he cannot more specifically describe the defects which caused the said derailment than as above set out."

The petition charges that within a day or so before this accident this car was derailed, which was notice to appellant of its defective condition, and, notwithstanding such notice, appellant continued to operate said car. An ordinance of the city of San Antonio was pleaded which prohibits the running of cars to exceed 10 miles per hour, and it is alleged that this train was being operated at 15 to 17 miles per hour, at the time of the derailment, in violation of such city ordinance. Plaintiff alleges that he was on top of said car at the time of the derailment, and was thrown and caused to fall with great violence upon and about the top of said car and against the running board, and his back, sides, spine, and spinal cord were severely shocked and injured; that his nervous system suffered shock and injury; that by reason thereof his heart action had been greatly impaired and made weak; that his kidneys and bladder and vocal organs were seriously affected; and his general health and physical condition have been permanently impaired and broken down, etc. The petition avers that the plaintiff cannot more specifically set forth the defects in the car, but that such facts are peculiarly within the knowledge of the defendant company. His injuries are alleged to be permanent. The defendant, among other things, alleges that the injuries were the result simply of an accident; that the defects in the car, if any, were latent, and proper inspection had been made, all...