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

• Decision Date: 30 January 1885
• Docket Number: Case No. 5085.
• Citation: 63 Tex. 172
• Court: Texas Supreme Court
• Parties: H. & T. C. R'Y CO. v. BARNEY DEVAINY.

63 Tex. 172

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

v.BARNEY DEVAINY.

Case No. 5085.

Supreme Court of Texas.

Jan. 30, 1885.

APPEAL from Grayson.Tried below before the Hon. Richard Maltbie.

Suit by appellee, brought March 6, 1883, and an amended petition filed October 25, 1883.

The petition alleged that the plaintiff and one Rush were immigrants from Ireland, and were going to Galveston.They had immigrant tickets from Philadelphia to Galveston, but that their route from Denison was over the Missouri Pacific Railroad.They reached Denison in the night.Some time afterwards one of defendant's trains came up to the platform, and the two immigrants approached the brakeman, who stood at the door of one of the cars, presented their tickets, and asked him if that was the train to Galveston.He told them that it was, and directed them to enter, which they did.

The train started, and had gone only two or three hundred yards when the conductor examined plaintiff's ticket, and told him he was on the wrong train and must get off.The train was immediately stopped and the two men directed to get off, which they did.That this occurred on or near the end of a trestle thirty or forty feet high, and that it was so dark that they could not see their way.Plaintiff made a few steps, and fell to the bottom of a deep ravine, whereby he was seriously and permanently injured.Plaintiff was about thirty-five years old, in perfect health, and was a common laborer.

He was completely disabled by injury to his back and one of his ankles.He claimed $10,000 actual damages, and the same amount as exemplary damages.

The defendant demurred, denied generally, and charged that, if plaintiff was injured, it was the result of his own carelessness.

Judgment rendered for plaintiff for $2,700.

Among other things, the court charged the jury that, if the plaintiff's ticket did not entitle him to travel on that train, the conductor might lawfully put him off; but it must be in a place of safety.“And if you believe that the conductor did not land the plaintiff in a place of safety, but that it was in one of danger, and that, in attempting to make his way back to Denison, he fell through a trestle on defendant's road, while acting with due care and caution, and was thus injured, … you will find in favor of the plaintiff.”

Plaintiff and Rush both testified that they were put out on the track, the cars barely coming to a halt and immediately starting again; that they were in perfect darkness, and could not see the track or anything else; that, after making a few steps, plaintiff fell to the bottom; that Rush crawled over the trestle to the depot and got help and a light, and then moved plaintiff to the depot.There was no dispute about the character of the injuries.

The conductor and several other witnesses swore that the men were put out about one hundred feet south of the trestle at a place where a dirt road crosses the track and leads back to the depot.The conductor said he held his light and pointed out the road to the men; told them to follow that back to the depot, and “to look out for openings in the road.”

It appears that about one hundred feet south of the dirt road a railroad crosses the defendant's track.All trains stop before reaching this crossing, and the conductor and engineer stated that the stopping place is at or near the crossing of the dirt road; but other witnesses of the defendant testified that the trains often stopped north of the dirt road, and even on the trestle.

It seemed to be left uncertain where the train stopped on the night of the accident--whether at the dirt road or at the trestle.Plaintiff and Rush denied that the conductor told them of the dirt road, or gave them any directions, except to go back to the depot.One of the grounds of the motion for a new trial was newly discovered evidence.

One J. W. Miller made affidavit that on the night of this accident he heard the two men say that they had started back on the dirt road, but fearing that they might not be able to find the depot, they got on the railroad track, and plainti...