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

• Decision Date: 11 June 1889
• Citation: 11 S.W. 1104
• Parties: GULF, C. & S. F. RY. CO. <I>v.</I> SMITH.
• Court: Texas Supreme Court

11 S.W. 1104

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

SMITH.

Supreme Court of Texas.

June 11, 1889.

Appeal from district court, Lampasas county.

Action for damages for personal injuries, brought by John W. Smith against the Gulf, Colorado & Santa Fé Railway Company. Trial by the court, and judgment for plaintiff for $2,500 damages. Defendant appeals.

Matthews & Wood, for appellant. Walter Acker, for appellee.

STAYTON, C. J.

After alleging a contract under which appellee became a passenger on one of appellant's trains, the petition contained the following averments: "And while plaintiff was so lawfully in defendant's said car, as a passenger therein, through the gross negligence and carelessness and default of said company, its agents, servants, and employés, said car was run off the track, and thrown from the road-bed of said railroad, and turned over from the embankment thereof, and plaintiff was thereby thrown with great force and violence against the seats and sides of said car, and was thereby greatly injured, cut, bruised, etc.; and plaintiff avers that his said injuries were caused and occasioned by the gross negligence, carelessness, and default of the defendant company, its agents, servants, and employés." There was no more specific averment of fact relied on to show negligence, and the petition was excepted to because it did not allege more particularly acts of negligence. The exception was overruled, and that ruling is assigned as error. The averments of fact are that appellee was a passenger; that the car was derailed, overturned; and that injury therefrom resulted in manner and to the extent stated. These things are alleged to have occurred while the train and road were under the exclusive control of appellant's servants, and through the negligence of itself or employés. The pleadings are not required to be broader or more specific than the evidence is required to be to establish a given fact necessary to a recovery; and in this class of cases it would be frequently difficult, if not impossible, for a passenger injured through a derailment to specify with particularity the facts which were the immediate cause of the accident. As said by one of England's most distinguished judges, "when the breaking down or overturning of a coach is proved, negligence on the part of the owner is [may be] implied. He has always the means to rebut this presumption if it be unfounded; and it is incumbent on the defendant to make out that the damage in this case arose from what the law considers a mere accident." Chirstie v. Griggs, 2 Camp. 79. The fact that the car runs off is evidence of defect or negligence somewhere; and, when the track and the cars are under the exclusive control of the defendants, it has been held evidence of negligence sufficient to charge them, in the absence of any explanation showing that the accident happened without fault on their part. Le Barron v. Ferry Co., 11 Allen, 312; Carpue v. Railway Co., 5 Q. B. 747. "It is not incumbent on the plaintiff, after proving an accident which implies negligence, to go further, and show what...