Hines v. Welch
Decision Date | 03 March 1921 |
Docket Number | (No. 2385.) |
Citation | 229 S.W. 681 |
Parties | HINES et al. v. WELCH. |
Court | Texas Court of Appeals |
Appeal from District Court, Van Zandt County; Joel R. Bond, Judge.
Action by W. W. Welch against W. D. Hines and others. Judgment for plaintiff, and defendants appeal. Affirmed.
J. L. Welch chartered a car from the agent of the railway company at Grand Saline to transport his household goods to Nacogdoches. The railway agent placed the car for loading on a side track. W. W. Welch, the appellee, 33 years old, was assisting J. L. Welch in loading the car. W. W. Welch was inside the car, and J. L. Welch was standing in a wagon next the door of the car, handing the goods to W. W. Welch, who arranged them in the car. An engine switching cars to the side track shoved a car against the car being loaded. At the time of the impact, which was forcible, the appellee "started to reach for a sack of salt which was on the edge of the wagon bed, to bring it into the car, and the car was struck and threw me out on the wagon wheel, on my right side, and I further fell from the wagon wheel, on my hip, on the cross-ties." For the injuries, which appear from the evidence to have been very serious and permanent, the appellee sues for damages, alleging that "the employees of the defendant negligently shoved a car against the car in which this plaintiff was working loading said car to be transported." The defendant answered by general denial and pleaded contributory negligence as follows:
The jury made answer to the special issues submitted: (1) That the plaintiff did not have notice that the car was going to be moved; (2) that the failure of the defendant's agent to notify the plaintiff that the car was to be moved was negligence proximately causing the injury; (3) that the agent in charge of the train negligently handled the cars, causing the impact and lurch, proximately resulting in the injury; (4) that the plaintiff while engaged in loading the car used ordinary care to avoid injury, and was not guilty of contributory negligence; (5) that he suffered damages, stating the amount. The evidence supports the findings of the jury, and they are here adopted.
The evidence relied on is stated in the appellants' brief as follows:
The statement of the evidence is approved. The record does not show that appellee heard the brakeman tell the father that the car was to be moved, or that appellee had any notice of warning or knew of the intention to move it.
Wynne & Wynne, of Kaufman, for appellants.
Simpson, Lasseter & Gentry, of Tyler, for appellee.
LEVY, J. (after stating the facts as above).
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