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

• Decision Date: 09 December 1908
• Citation: 115 S.W. 57
• Parties: GALVESTON, H. & S. A. RY. CO. v. HENEFY.<SMALL><SUP>†</SUP></SMALL>
• Court: Texas Court of Appeals

115 S.W. 57

GALVESTON, H. & S. A. RY. CO. v. HENEFY.^†

Court of Civil Appeals of Texas.

December 9, 1908.

Rehearing Denied January 13, 1909.

Appeal from District Court, Bexar County; Edward Dwyer, Judge.

Action by M. A. Henefy against the Galveston, Harrisburg & San Antonio Railway Company. From a judgment for plaintiff, defendant appeals. Affirmed.

See, also, 99 S. W. 884.

Baker, Botts, Parker & Garwood, Newton & Ward, W. B. Teagarden, D. C. Bolinger, and W. F. Ezell, for appellant. John Sehorn, for appellee.

NEILL, J.

Henefy sued the railway company to recover $40,000 for personal injuries alleged to have been inflicted on June 28, 1903, by its negligence.

The negligence averred is, in substance, that on the day named plaintiff was in defendant's employment as a brakeman, engaged, with other of its employés, among whom was another brakeman named Lon Means, in operating one of its freight trains; that it became his duty, by reason of his employment, at the station of Uvalde, to board the caboose of the train and ride thereon to a switch for the purpose of throwing it, so the train could take a side track and there await the passage of another train on the main line; that, while his train was in motion, plaintiff took a position in advance of it, near the track it was on, in plain view of defendant's employés operating it, so he could get on the caboose when it reached a point opposite where he was standing; that when the rear end of the caboose reached that point, he attempted to board it, and while in the act of doing so, Lon Means, without looking or giving notice or warning of his intention so to do, threw from the caboose a sack of ice, for delivery at said station, weighing about 100 pounds, which struck plaintiff, and thereby inflicted upon him serious, painful, and permanent injuries; and that the act of Means in so throwing off the sack of ice was negligence, and the direct cause of plaintiff's injuries. The defendant answered by general and special exceptions to plaintiff's petition, a general denial, pleas of contributory negligence, negligence of a fellow servant, and that the sack of ice was not transported nor unloaded for or in behalf of defendant, but by its employés operating the train, as a personal accommodation to its station agent at Uvalde, and that such acts were not within the scope of the duty or authority of the crew operating the train. The case was tried before a jury, who returned a verdict in favor of plaintiff for $22,000, and, upon the court's requiring it, as a condition precedent to overruling defendant's motion for a new trial, a remittitur of $5,000 was entered by plaintiff, and judgment was then rendered in his favor for $17,000.

Conclusions of Fact.

As it is urged under the second, third, fourth, fifth, sixth, seventh, eighth, ninth, fifteenth, sixteenth, and seventeenth assignments of error that the evidence is insufficient to support the verdict, such assignments will be considered and disposed of in arriving at our conclusions of fact. They will also determine the disposition of the first assignment, which complains of the court's refusal to peremptorily instruct the jury, at defendant's request, that the plaintiff had wholly failed to establish his right to recover, and they would therefore return a verdict for the defendant. The undisputed evidence shows that at the time of his alleged injury, plaintiff and Lon Means were in defendant's employment as brakemen, and engaged, with other of its servants, in operating one of its freight trains; that when the train arrived at Uvalde Station it became plaintiff's duty in the course of his employment to throw a switch in order that the train might be run from the main track on a siding to await the coming and passage of a passenger train which had the right of way over the road; that for the purpose of riding on the caboose to the switch which he was to throw, plaintiff took a position near the track where he could board the caboose when it reached a point opposite him; that when its rear end reached that point, and he was in the act of getting on, his fellow servant Lon Means, though plaintiff was in a position to be seen by him, without notice or warning, and without plaintiff being aware of his intention, threw from the rear platform of the caboose a heavy sack of ice, which struck plaintiff, thereby inflicting upon him the injuries alleged in his petition, which were painful and serious and are permanent. The first question arising from these facts is, Was the act of Means in thus injuring plaintiff actionable negligence, as against the defendant? If it was negligence in Means, such negligence will be chargeable to the defendant. Article 4560f, Sayles' Ann. Civ. St. 1897; T. & P. Ry. Co. v. Webb, 72 S. W. 1045, 31 Tex. Civ. App. 498; Lumber Co. v. Mounce (Tex. Civ. App.) 102 S. W. 143; Cunningham v. Neal (Tex.) 107 S. W. 539, 15 L. R. A. (N. S.) 479; Texarkana & Ft. S. Ry. Co. v. Anderson (Tex. Civ. App.) 111 S. W. 173. Whether the act of Means was negligence was purely a question of fact, and the evidence reasonably tends to support the jury's finding that it was. The evidence likewise warrants the finding that plaintiff was not guilty of contributory negligence. Nor can he be held to have assumed the risk of negligence of Means which caused his injury. S. A. & A. P. Ry. Co. v. Stevens, 37 Tex. Civ. App. 80, 83 S. W. 235. That the sack of ice may have been carried for the accommodation of defendant's station agent affords no ground of defense. While the verdict as returned would seem to us excessive, we are not able to say, in view of the evidence, that the judgment was not relieved of such excessiveness by the remittitur made at the instance of the trial court. Inasmuch as this court could have required such remittitur, had it not been done by the district court, we can perceive no ground of complaint that it was done there, instead of here. These conclusions dispose of the assignments which complain of insufficiency of the evidence to support the verdict, and demonstrate that the court did not err in refusing defendant's request to peremptorily instruct a verdict in its favor.

Conclusions of Law.

1. Had the question, as embodied in the tenth assignment of error, been asked the witness Caffery, it would, if standing alone, have been speculative and opposed to the principle enunciated in G. H. & S. A. Ry. Co. v. Powers (Tex.) 105 S. W. 491. But it appears from the bill of exceptions, copied in the statement under the assignment, that the question asked was not as stated in the assignment, and not obnoxious to the principle referred to. The question, as it appears from the bill of exceptions, after stating certain facts as its hypothesis, is: "Now assuming these facts to be true, Doctor, what, if any, effect would such a blow have on a man's sciatic nerve?" The validity of the objection to the first answer that it was speculative was admitted by plaintiff's counsel; and the witness, being informed by him that the probable effect of such a blow was what he wished to prove, then answered: "It [the sciatic...