Gulf, C. & S. F. R. Co. v. Kirkbride

• Decision Date: 03 February 1891
• Citation: 15 S.W. 495
• Parties: GULF, C. & S. F. R. CO. v. KIRKBRIDE.
• Court: Texas Supreme Court

15 S.W. 495

GULF, C. & S. F. R. CO. v. KIRKBRIDE.

Supreme Court of Texas.

February 3, 1891.

Appeal from district court, Lamar county.

Hale & Hale, for appellant. Hodges & Allen, for appellee.

HENRY, J.

This suit was brought by appellee to recover damages. His petition charges that he was expelled from the top of a box-car upon defendant's road "by one of the employes and agents or servants of the defendant, who was then in charge of and assisting as such employe in moving said box-car." The evidence shows that the plaintiff and another man were sitting on the top of a box-car which was standing on a side track in the defendant's yard at Paris; that, without their observing it, an engine was attached to the car, and it was put in motion; that "a man" came on the top of the car, and asked plaintiff and his companion where they were going, and upon his being told by them that they were not going anywhere he ordered them off; that they objected to obeying because the train was running too fast, and requested him to stop it, so that they could get off; that the man again ordered them off, using towards them abusive language, and threatening to inflict personal violence upon them if they did not obey him, which he repeated to plaintiff after he had climbed down a ladder on the side of the car; that plaintiff, under the apprehension of and to escape violence, leaped from the ladder, and was injured on account of the rapid rate of speed at which the car was being propelled; that the man "came from the direction of the engine;" that the man "says his name is John Childress, and he was a brakeman, a yard-master, or a switchman of the defendant;" that "John Childress worked for the defendant from the time the road first came to Paris until the latter part of the summer of 1887 or early fall;" that John Childress was the name of the man who ordered plaintiff off of the car, and that he "had been trying to keep the boys off of the cars all day;" that "the yard-master, his foreman or switchman, when authorized by the yard-master, have the right to eject any one from the train while in the yard switching, and that "conductors or any one in charge of the trains have the right to eject any one from the train." It was proved that John Childress was in the service of the defendant subsequent to the date of plaintiff's injury. Appellant assigns the following errors: "(1) The court erred in admitting, over defendant's objection, the following language, used by the witness J. R. Tillman in his deposition in answer to the fourth interrogatory, to-wit: `Conductors, or any one in charge of the trains, have the right to eject any one from the trains;' there being nothing in the plaintiff's petition to show what the duties of any of the employes of the defendant are, or who had charge or control of the train, or what the duties of the employe whose conduct...