Gulf, C. & S. F. Ry. Co. v. Jones

• Citation: 11 S.W. 185
• Parties: GULF, C. & S. F. RY. CO. <I>v.</I> JONES.
• Decision Date: 05 March 1889
• Court: Supreme Court of Texas

11 S.W. 185

GULF, C. & S. F. RY. CO.v.

JONES.

Supreme Court of Texas.

March 5, 1889.

Error from district court, Harris county.

Action by Jordan Jones against the Gulf, Colorado & Santa Fe Railway Company for damages for personal injuries. Judgment for plaintiff, and defendant appeals.

J. W. Terry and Alexander & Clark, for plaintiff in error. Brady & Ring, for defendant in error.

GAINES, J.

The appellee, by his mother, as his next friend, brought this suit for injuries received in attempting to make a coupling of cars while in the employment of the appellant company. The case made by the petition and evidence was that at the time of the accident plaintiff was a minor, about 16 years old, and was in the service of the company as a coal-heaver; that he was wholly without experience as a brakeman and switchman; that on the day he was injured he was placed by the servants of the company on duty as a switchman in its yards, against his wishes and the wishes of his mother, and that by reason of his inexperience he was injured. He testified to his age as alleged, and also that he had never previously done any duty whatever as brakeman or switchman, and that when called upon to act as such he objected, on the ground that his mother did not wish it. His mother, who was a freed-woman, corroborated him as to his being a minor, fixing the date of his birth by the time of the emancipation proclamation at the close of the late war. Walling, the foreman in control of the switch-engine, testified that, being on the day of the accident short of a switchman, he "asked him [plaintiff] if he would do the work, and he said he would, and that settled it. * * * If he objected to doing the work, he did not make it known to me. His manner did not indicate it, and he seemed perfectly willing in every way. He did not tell me his mother objected to his working in that capacity, and I did not insist upon his working." This witness also testified that he knew of his making several trips to Alvin from Houston as brakeman and fireman, and knew of his working at different times for different parties for a half a day when they would be away. Evans, the station-master, also testified that he had done work of that kind before, and had been frequently in that service, but was not on the pay-roll as a switchman. Echols, a conductor of defendant, testified that he (witness) had acted as conductor on a train from Houston to Alvin, and that plaintiff had made several trips with him as brakeman, and that he had filled every position on his trains except conductor and engineer. Cailfield, who had been a car inspector of defendant, but who was not in its service when his deposition was taken, deposed that he knew plaintiff, and that "he had considerable experience braking and switching. He was an apt boy of his age, and he seemed to be competent, and understood the nature of the employment of brakeman and switchman." Christian, an engineer on the line from Houston to Alvin, corroborated Echols as to his having made several trips to Alvin, and that he "had seen him switching often." The only evidence that tended to throw any discredit upon the testimony of any of defendant's witnesses (except that of plaintiff himself) was that of Evans, the yard-master, who testified that he had never paid the plaintiff for work except as a coal-heaver. One of the other witnesses had sworn that when plaintiff acted as brakeman the company paid him as other brakeman. There is reason to think this witness may have been merely...