H. & T. C. R. R. Co. v. Clemmons

• Decision Date: 22 April 1881
• Docket Number: Case No. 4076.
• Citation: 55 Tex. 88
• Court: Texas Supreme Court
• Parties: H. & T. C. R. R. CO. v. M. L. CLEMMONS.

55 Tex. 88

H. & T. C. R. R. CO.

v.M. L. CLEMMONS.

Case No. 4076.

Supreme Court of Texas.

Apr. 22, 1881.

APPEAL from Grayson. Tried below before the Hon. Joseph Bledsoe.

Suit brought by plaintiff in the district court of Grayson county to recover damages for personal injuries received by him in the wreck of a train on defendant's line of railway, on the 7th day of April, 1877, which plaintiff alleges occurred through the negligence of defendant's servants, and by the use of inferior and inadequate machinery.

The answer was a general denial, and especially that the accident was unavoidable, and without any fault of defendant or its employees, and that plaintiff contributed to his injury by riding on said train in a place more perilous than that provided by defendant for the carriage of passengers-- i. e., the coaches--without the knowledge of defendant and in violation of rules known to plaintiff. Judgment for plaintiff in the sum of $2,200.

Clemmons, in his testimony, stated he was in the baggage car, and had gone in there to get a drink of water when the wreck occurred; that he was standing near the middle of the car, and had been in there about five minutes; that he had been railroading a number of years prior to the accident, when he was running as fireman on the engine that was pulling the train wrecked.

C. R. Barth testified that he was the conductor; that there was a baggage car and coaches in the train, and that the coaches were for the passengers; that passengers were prohibited from riding in the baggage car by himself and other employees, and that plaintiff was a railroad man and knew he ought not to ride there.

G. A. Quinlan testified that the baggage car is a place of more peril to ride in than the coaches in its rear.

Wagley testified that the cars were about half full when they left McKinney; and that nobody was in the baggage car between McKinney and Melissa except the conductor, himself, and a person whom he was informed was a German laborer or brakeman.

Thos. Kelty testified that but three persons were hurt in the wreck--the engineer, himself and the plaintiff, and that witness was the fireman, and breaking coal in the tank when the wreck occurred.

The testimony showed that water for passengers on the train was carried in the baggage car; that there was no water in the coaches and that there were no porters on the train to carry water to passengers.

The wrecked train was an excursion train, got up for that purpose, from Denison to Dallas and return. Defendant in error was a passenger on the train and had paid his fare. The engine used to draw the train was a freight engine, provided with only the common Armstrong brakes, and did not have the improved Weston hose and air brake attachments now used on passenger trains. Both the conductor and engineer were discharged immediately after the accident, by the plaintiff in error. The witnesses differ about the speed the train was running at the time of the wreck, varying from twenty to forty miles an hour. The maximum speed allowed for that train by plaintiff in error was twenty-four miles an hour. The wreck was caused by running over a mule. The road of defendant in error at the place of the wreck was straight. When the train approached the mule the whistle was not sounded, or other means used to frighten the mule from the track. There was no evidence that any effort was made to stop the train as it was approaching the mule.

R. De Armond, for plaintiff in error.

J. D. Woods and W. W. Wilkins, for defendant in error.

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