Houston & T. C. R. Co. v. Brown

• Decision Date: 11 June 1902
• Citation: 69 S.W. 651
• Parties: HOUSTON & T. C. R. CO. v. BROWN.
• Court: Texas Court of Appeals

69 S.W. 651

HOUSTON & T. C. R. CO. v. BROWN.

Court of Civil Appeals of Texas.

June 11, 1902.

Appeal from district court, Travis county; F. G. Morris, Judge.

Action by W. L. Brown against the Houston & Texas Central Railroad Company. From a judgment in favor of plaintiff, defendant appeals. Affirmed.

Gregory & Batts, Baker, Botts, Baker & Lovett, and Frank Andrews, for appellant. J. R. Norton and Hogg, Robertson & Hogg, for appellee.

FISHER, C. J.

This suit was instituted in the district court of Travis county by W. L. Brown, plaintiff below, to recover damages against the Houston & Texas Central Railroad Company, defendant below, for injuries alleged to have occurred on the 23d of September, 1899, through the negligence of the defendant. The defendant answered by general demurrer, general denial, pleas of contributory negligence, and settlement and release. The plaintiff by supplemental petition admitted the execution of the release, but pleaded a tender and return of the money, and that the execution of the release was induced by fraud and fraudulent misrepresentations. A more detailed statement of the pleadings is not considered essential, as they will be noticed under such assignments as put in issue matters involved in, and questions arising out of, the pleadings. The case was tried before the court sitting with a jury, and on the 11th day of October, 1901, resulted in a verdict and judgment in favor of the plaintiff for the sum of $2,888.

There is evidence in the record which has a tendency to establish the following facts: (1) That appellee, Brown, at the time of the injury, was an employé and watchman for appellant in its yards at Houston. (2) That while in the discharge of his duties, at about 5 o'clock in the morning, when the night was very dark, and while crossing the yard of the appellant, he was suddenly taken sick; that his bowels became uncontrollable, and he was forced to instantly stop, drop down his pants, and squat down near the edge of one of defendant's tracks, and not far from the end of a car standing on the track, in order to prevent the contents of his bowels being emptied in his clothing. (3) That the call of nature was so urgent that it was impossible for him to move at all from the position he was in at the time he was stricken. (4) That in the performance of this act, over which he could exercise no control, he exercised all such care for his protection as would or could have been exercised by any ordinarily careful and prudent person under like circumstances. (5) That appellant negligently left two of its cars standing on its track, without having caused the brakes to be set thereon, so as to prevent their being moved when struck by other cars. (6) That it was customary and usual, and ordinary care and prudence required, that when cars were thus left standing upon the track, that brakes should be set upon them, so as to prevent their being moved in said manner, for the protection of its employés, working in said yard, and the appellee had the right to assume that appellant had discharged its duty, and caused the brakes to be set upon said cars, so that they could not thus be moved. (7) That appellant's employés, working in a different part of said yard, negligently kicked and caused to be run over its track at a very high rate of speed for a great distance two or three other cars, striking the two cars standing, as aforesaid, with great force, causing them suddenly and with great speed to roll down over its track, striking appellee before he had time to discover their movement...