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

• Decision Date: 24 April 1901
• Citation: 63 S.W. 164
• Parties: GULF, C. & S. F. RY. CO. v. WOOD.<SMALL><SUP>1</SUP></SMALL>
• Court: Texas Court of Appeals

63 S.W. 164

GULF, C. & S. F. RY. CO. v. WOOD.¹

Court of Civil Appeals of Texas.

April 24, 1901.

Appeal from Collin county court; J. H. Faulkner, Judge.

Action by T. S. Wood against the Gulf, Colorado & Santa Fé Railway Company. From a judgment in favor of plaintiff, defendant appeals. Affirmed.

J. W. Terry and B. K. Goree, for appellant. D. P. Johnson and Abernethy & Beverly, for appellee.

NEILL, J.

This suit was brought by the appellee against appellant to recover damages for alleged personal injuries inflicted by the latter upon the former by its negligence. The appellee, as his cause of action, alleged substantially that in October, 1899, he was employed as a section hand on appellant's road; that while engaged in the pursuance of his employment at work on the road one of its trains was seen approaching where he, with the section gang, was employed, and that, to allow the train to pass, he stepped back a few feet from the track, and, while standing a safe distance from the track, a piece of slate, rock, coal, or stone became detached from the passing engine, tender, or cars of said train, and struck him upon the neck, shoulder, and head, inflicting great pain and injury; that said piece of coal, rock, slate, or stone was negligently placed upon said engine, tender, or cars by appellant's servants and employés engaged in operating and running said train, which train was being run at a high rate of speed, and thereby gave the projectile with which he was struck great momentum, which was sufficient to knock him, and did knock him off his feet, down an embankment, inflicting the severe injuries upon his person aforestated; and that by reason of appellant's said acts of negligence he suffered great pain in body and mental anguish from the injuries occasioned thereby, as stated above, to his damage in the sum of $1,000. The appellant answered (1) by a general denial, (2) plea of assumed risk, and (3) plea of contributory negligence. The trial of the case, which was before a jury, resulted in a judgment in favor of the appellee for $200.

The facts in the case, as shown by the evidence, are substantially as follows: Appellee, as alleged, was, at the time he averred in his petition the injury occurred, in the employ of appellant as a section hand, working with a gang upon its road. Seeing a passenger train approaching the point where they were at work, he, with the other members of the gang, in order to allow the train to pass over the track, desisted from work, and stepped from the track onto an embankment, where he stood five or six feet from the train as it passed. In passing, a large piece of stone coal fell from the engine, tender, or some part of the train upon the ground near him with great force, was broken in pieces thereby, and a fragment thereof struck appellee on the back of his neck, knocked him off his feet, down the embankment, rendering him a while insensible, causing him pain and suffering, from which injuries, pain, and suffering he was damaged in the amount found by the jury.

It is not shown in the evidence what caused the piece of coal which injured appellee to fall from appellant's passing train. According to the testimony of appellant's trainmen, the tender was properly loaded with coal when the train started on its journey, and that in taking coal from the tender to the fire box of the engine it was carefully handled. The fact that in passing the appellee a large piece of coal fell or was thrown from the train with great force is all the evidence found in the record tending to show negligence...