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

• Decision Date: 28 February 1890
• Citation: 13 S.W. 374
• Parties: GULF, C. & S. F. RY. CO. <I>v.</I> JONES.
• Court: Texas Supreme Court

13 S.W. 374

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

JONES.

Supreme Court of Texas.

February 28, 1890.

Appeal from district court, Harris county; JAMES MASTERMAN, Judge.

Action by Jordan Jones, by his next friend, against the Gulf, Colorado & Santa Fe Railway Company. Judgment was rendered for plaintiff, and defendant appealed.

J. W. Terry, for appellant. Brady & King, for appellee.

GAINES, J.

This case was before this court at a former term, and the opinion is reported in 73 Tex. 232, 11 S. W. Rep. 185. It was then reversed, on account of improper language used by counsel for the plaintiff in his closing argument to the jury. Upon the second trial, the plaintiff again obtained a verdict and judgment in his favor, and the case now comes before this court, solely upon the question of the sufficiency of the testimony to sustain the verdict. The court in its general charge instructed the jury, in effect, that if the employment at which the plaintiff was engaged was dangerous, and if from his age, size, and capacity the agent who employed him knew, or should have known, that it was not prudent to put a person of his capacity at such employment, and if it was or should have been apparent to the agent that he did not have the capacity and discretion reasonably necessary for that business, and if he were not himself negligent, and his injuries resulted from his want of capacity and discretion by reason of his youth, they should give a verdict in his favor. The charge is not complained of. In addition, the court, at the request of counsel for the defendant, gave the following instruction: "You are charged that, if you believe from the evidence that the plaintiff, prior to the day of his injury, had had experience as a brakeman or switchman, sufficient to enable him to learn and appreciate the dangers of the employment, and that he had the strength and intelligence to perform the work of a brakeman or switchman, and that these facts were known to the agent of the defendant who employed him, then, under such circumstances, such agent was not required by the law to advise or caution him as to the dangers or character of the employment; and if you believe from the evidence that the facts are as above stated, you will find for the defendant." It is apparent from these instructions that the case was made to turn upon the capacity and discretion of the plaintiff for the employment of a brakeman or switchman. If the verdict had depended upon plaintiff's proving that he had no experience in the work of switching or braking, we are inclined to think that it should not be sustained. He testified positively that he had never acted as a brakeman before, and that he entered upon the service against his will. His mother corroborated him so far as her knowledge extended, but it is probable that he may have served in the capacity occasionally without her knowledge. On the other hand, several witnesses who had been or were at the time of trial in the employment of the...