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

• Citation: 59 Tex. 255
• Decision Date: 17 April 1883
• Docket Number: Case No. 4755.
• Parties: H. & T. C. R'Y CO. v. JOHN MCNAMARA.

59 Tex. 255

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

v.JOHN MCNAMARA.

Case No. 4755.

Supreme Court of Texas.

Apr. 17, 1883.

APPEAL from Grayson. Tried below before the Hon. J. R. Cowles.

Suit by the plaintiff, John McNamara, to recover damages for personal injuries received while in the employ of defendant as brakeman on its road. The damages were laid at $20,000. The defense was contributory negligence on the part of plaintiff. Verdict and judgment for plaintiff for $5,500.

Defendant asked the court to instruct the jury, “That it was the duty of the plaintiff, as brakeman in the service of the defendant, to have acquainted himself with the general duties of the position, and he assumed at his peril the risks and dangers naturally and usually incident to his employment as such brakeman, including the risks and dangers of such defects, if any, as were reasonably open to his ordinary inspection, under the circumstances. And if the evidence shows that the plaintiff, by ordinary inspection under the circumstances, might have known of the defect in defendant's track, if there was any, and failed to notify defendant of the same, and continued in the service of defendant without objection or protest, the law would presume he assumed the risk incident to the employment, and he cannot recover.” This was refused.

Plaintiff testified that he entered the employment of defendant in its yards in Houston in October, 1880; that the injury was occasioned by the spreading of the track by reason of rotten and defective ties, which caused the overturning of a box car in a train being moved on the transfer track at Houston connecting the H. & T. C. R'y line with that of the Texas & New Orleans R'y line. Plaintiff was on the car overturned, and fell with it, breaking his leg and receiving other injuries. He stated that he did not know of the condition of the track up to that time, had never been over it on foot, had always been on top of the cars at his post of duty; that he was twenty-six years of age at date of injury and was earning $60 per month; that he had been unable to work at all since the injury. His left thigh was broken near the hip and his leg shortened thereby two inches; his back was severely injured and his kidneys affected, so that he urinated with pain for a year after the hurt and with difficulty still; his back so weakened that he could not sit straight long at a time; that when he sits for a time, his back pains him greatly; was confined for nine months under treatment; in danger of losing his life, and subjected to great pain and uneasiness from the injuries and the severe treatment to stretch and straighten the injured limb. Before injury was a stout, healthy, active man.

R. De Armond, for appellant.

Woods, Wilkins & Cunningham, for appellee.

WILLIE, CHIEF JUSTICE.

The assignments of error relied on for a reversal of the judgment below are five in number. The first, viz., that the court erred in its instructions to the jury; the third, that the finding of the jury is contrary to law, and contrary to and without evidence; and the fifth, that the court erred in refusing to grant a new trial upon the grounds set forth in the motion for a new trial,--are too general to be considered by this court. Supreme Court Rule 26; Green v. Dallahan & Co., 54 Tex., 281; Railway Co. v. Shafer, Id., 641.

The second assignment is sufficiently definite and complains of the refusal of the court to give the only instruction asked by defendant.

The theory of this charge is that if the plaintiff, by ordinary inspection, might have known of the defects in defendant's railroad track, and failed to notify defendant of the same, and continued in the service without objection or protest, the law would presume that he assumed the risk incident to the employment and he could not recover.

To test the correctness of this charge it will be necessary to consider it in reference to the proof introduced on the trial upon the points to which it applies.

The uncontradicted evidence shows that appellee was in the employment of the railroad company as a brakeman at the time of receiving the injury which is the cause of action in this suit. He was at the place where his duty as such employee required him to be, viz., on the top of one of the box cars of a freight train. This car, together with another in front of it, was thrown from the track, the brakeman precipitated violently to the ground, his thigh being thereby broken, and he receiving other injuries of a very serious character. The accident was caused by rotten ties, which allowed the rails to spread so soon as the train struck them, and the fall of the two first cars of the train was the natural consequence. The duty of the appellant did not require him to pass over this portion of the track on foot, and he had never gone over it, except on top of the train, from which the defect of the track could not be seen.

This evidence discloses very clearly that the appellee had no actual knowledge of the dangerous condition of the track, and that the defects were such as should reasonably have been known to the railroad company, and should have been remedied.

The master is bound to furnish suitable machinery and appliances...