H. & T. C. R'Y Co. v. Rider

• Decision Date: 24 October 1884
• Docket Number: Case No. 1610.
• Citation: 62 Tex. 267
• Parties: THE H. & T. C. R'Y CO. v. HENRY RIDER.
• Court: Texas Supreme Court

62 Tex. 267

THE H. & T. C. R'Y CO.

v.HENRY RIDER.

Case No. 1610.

Supreme Court of Texas.

Oct. 24, 1884.

ERROR from Dallas. Tried below before the Hon. Geo. N. Aldredge.

The opinion sufficiently states the facts. The verdict was against the company for $4,000. It was contended that the injury was inflicted on plaintiff at a time when plaintiff was not actually engaged in service, and when his time was his own, and that it was the result of the negligence of the manager of the train in not giving signals.

R. De Armand, for plaintiff in error.

Crawford & Crawford, for defendant in error, cited: Baird v. Petit, 70 Pa. St. Rep., 477;Packet Co. v. McCue, 17 Wall., 508; Wood's Master & S., sec. 404; Thompson on Neg., 1046, sec. 43; 60 Ill., 170; 14 American R., 32; Penal Code, art. 183; McGarth v. Merwin, 112 Mass., 467;17 Am. Rep., 119;9 Bush, 566;3 Head (Tenn.), 638.

STAYTON, ASSOCIATE JUSTICE.

The testimony offered for the plaintiff, which is not controverted by any which appears in the record, shows that the plaintiff was in the employment of the railway companay as section hand, and that he and others, in the performance of the duties which such employment embraced, had been engaged in repairing the railway and removing a wreck therefrom, and that after having done this they were returning to the section house at which they usually staid.

From the section house to Miller's Station they had gone towards the wreck on a hand-car, but on reaching Miller's Station they left the hand-car and went to the wreck on some train. After the work on the wreck was completed they returned to Miller's Station on a construction train, which had orders from the train dispatcher to go into Dallas in advance of the mail train.

On arriving at Miller's Station, the flat car on which plaintiff was traveling was placed on a switch that the men on it might return from that place to the station house on the hand-car on which they came to Miller's Station. After that was done, the residue of the construction train, which consisted of a locomotive and tender, a caboose and one flat car, ran back towards or to the main track in order to go into Dallas in advance of the mail train, which was near and rapidly approaching. On seeing this, the engineer on the construction train, probably to avoid a collision, ran his train back on the switch, and in doing so the construction train ran against the car on which the plaintiff was, with such violence as to heavily jar it, whereby the plaintiff was thrown from the car and seriously injured.

No signal was given by the engineer on the construction train before running his train on the switch the second time.

The evidence shows that the engineer in charge of the construction train was regarded as a skilful and careful engineer, and there is no evidence of any defect in the train.

The duties of the plaintiff, under his employment as a section hand, are thus stated by the foreman of the section on which he was employed: “I was foreman under whom plaintiff worked; he was section hand in my gang at the time of said accident. The duties of a section hand are to work on and repair his section, and in case of a wreck on his section to go and repair it; and in case of a wreck on any other section than his, it is his duty to await orders to assist in repairing the wreck. It is his duty to go and assist. My section hands had no duties or employment connected with the cars by which the injury was occasioned at any time or times. The section hands did not constitute a part of the working force of the train when they were on it. I mean the train which caused the accident. There are different construction trains; the...