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

• Citation: 59 Tex. 334
• Court: Supreme Court of Texas
• Decision Date: 27 April 1883
• Parties: H. & T. C. R'Y CO. v. CHARLES MARCELLES.

59 Tex. 334

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

v.CHARLES MARCELLES.

Supreme Court of Texas.

Apr. 27, 1883.

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

Charles Marcelles brought this action against the Houston & Texas Central Railway Company for alleged injuries received by him on the 1st day of October, 1877, while in the employ of said company and in the discharge of his duties as switchman, laying his damages at $10,000. The negligence stated in the petition was the failure of the H. & T. C. R'y Co. to provide suitable fastenings to a rod used on this particular engine for switchmen to hold to in going on the engine from one part of the yard to another, and that the fastenings of the rod had been out of repair for a long time; that the plaintiff, in using and relying upon the rod while the engine was in motion, had received his injuries by the rod turning down under the pressure of his weight, throwing his feet off of the engine and causing him to be dragged along the track and over a frog, lacerating his buttocks, thighs, etc. It was also alleged as an act of negligence that no fireman was employed on the engine to assist in keeping a lookout.

The defense was general denial and special answer; that the negligence was that of a fellow-servant, and that defendant furnished suitable and safe machinery for the use of plaintiff, which was changed by the attachment of the rod without the knowledge or consent of defendant. Verdict and judgment for plaintiff for $1,800.

P. De Armond, for plaintiff in error.

No briefs for defendant in error have been delivered to the reporter.

WALKER, P. J. COM. APP.

The first assigned error is that “the finding of the jury is contrary to the law as given them in the instructions of the court.” A verdict is not wrong because it is not in accordance with an erroneous charge, and a judgment will not be reversed because it is not. Merriweather v. Dixon, 28 Tex., 19;Wright v. Wright, 6 Tex., 23. If the assignment is meant to imply that the charge was correct law, in order to assail the verdict as being in conflict with the law of the case as given in the charge, it must be treated as the assumption by the appellant that the charge gave the law of the case, and that the verdict was contrary to the law. The charge contained several distinct propositions on which the liability of the defendant was made to depend, and the assignment fails to discriminate or specify as to which of them contained or embraced a legal proposition which was disregarded, and contrary to which the jury found their verdict, nor does it point out wherein the verdict was against any one of them, or against the charge considered as a whole. Wherefore the assignment fails to conform to the statute (Pasch. Dig., art. 1591), or to rules 24 and 25 for the supreme court, and under the law the assignment must be deemed as waived. The brief of appellant's counsel does not attempt to indicate the particular error complained of, beyond a mere literal quotation of the assignment itself; consequently this assignment cannot be further noticed.

The second assignment is that “the finding of the jury is contrary to and against the evidence.” There is no conflict in the evidence, and the sole question is whether there is sufficient evidence to support the verdict. The rule on this subject, where it is a question of deficiency of proof to establish the cause of action, is that the evidence ought to be sufficient to satisfy the mind of the truth of the allegations, otherwise a new trial ought to be granted in the court below; and if that court refuses to grant it, the supreme court will revise the judgment overruling the motion. Chandler v. Meckling, 22 Tex., 42. The evidence proved the alleged defectiveness in the machinery or appliance attached to the engine, and that his injuries resulted from that defect. The evidence of carelessness on the part of the railway company in failing to keep the engine in a safe condition for use by its employees was circumstantial, and not as full and satisfactory as an issuable fact of that kind might be made. There was evidence, however, from which an inference might reasonably be drawn, that the defective rod had been in use for eighteen months, during which time it had become worn and unsafe to rely on; and, as it laid in the power, presumably, of the defendant to show that due and timely inspection of its condition had been made from time to time, if that fact existed, the failure to show such fact in rebuttal of the evidence of its weakness, and the insecurity involved to those whose duty constantly imperiled life or limb by using it, might well be regarded as significant and important, though negative evidence of the defendant's want of care, and as tending likewise to prove the incompetency of the machinist in charge, whose duty, the evidence showed, was “to keep the machinery in repair and fit for the uses required.”

The foreman of the yard testified “that it was his business and duty to see the engines used on his yard and appliances were kept in order, and that he supposed this rod was in good fix.” Newdoffer, the machinist of the yard, testified “that it was his duty, when his attention was called to it by the foreman of the yard, to repair machinery and appliances; that about eighteen months ago he had placed this rod on the tender by the...