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

Decision Date04 April 1908
Citation110 S.W. 150
PartiesHOUSTON & T. C. R. CO. v. DAVENPORT et al.<SMALL><SUP>*</SUP></SMALL>
CourtTexas Court of Appeals

Appeal from District Court, Ellis County; F. L. Hawkins, Judge.

Action by Sarah P. Davenport and others against the Houston & Texas Central Railroad Company. From a judgment for plaintiffs, defendant appeals. Affirmed.

Baker, Botts, Parker & Garwood, Frost & Neblett, and C. M. Supple, for appellant. Farrar & Pierson, C. B. Randell, and J. H. Wood, for appellees.

TALBOT, J.

This suit was instituted by Mrs. Sarah P. Davenport, on behalf of herself and her minor children, against the Houston & Texas Central Railroad Company, to recover damages on account of the negligent killing of her husband, D. Davenport. It is alleged, in substance, that on November 3, 1905, and for a long time prior thereto, the said D. Davenport was in the employ of the defendant company in the capacity of a locomotive engineer; that on said date the defendant negligently furnished the said Davenport a defective and dangerous locomotive engine to be operated by him in the discharge of his duties; that said engine was defective in that the boiler, radial stays, stay bolts, taps, threads, crown sheet, and sides of the fire box and every part of said engine, when so furnished, were old, worn, rusty, loose, cracked, out of repair, dangerous, and unfit for use; that said crown sheet, fire box, and the sides of said boiler were too thin, warped, crystallized, brittle, of inferior metal, and improperly constructed; and that the radial stays, stay bolts, threads, and fastenings connecting and holding together said crown sheet, sides, parts, and parcels of said boiler and fire box were not of sufficient number, size, or strength to enable the same to withstand the pressure of the steam generated in said boiler. It was further alleged that appellant had so registered and keyed said boiler as to cause it to show and register a higher steam pressure than it could carry; that appellant knew of the dangerous and defective condition of said engine, or could have so known by the use of ordinary care, but that the said Davenport was ignorant of the same; and that on said 3d day of November, 1905, while the said Davenport was engaged in the performance of his duties as said locomotive engineer, the said defective engine, which he was then using in drawing a freight train on appellant's railroad, exploded near the town of Ennis, in Ellis county, Tex., because of its said defects, and so injured the said D. Davenport that he died from the effects of said injuries within a few hours after he received them. It was also alleged that, at the time of his death, the said Davenport was earning from $175 to $225 per month, which he expended on his wife and children, the minor plaintiffs, and that his death was the result of the negligence of the appellant in furnishing him the said defective engine.

Defendant answered by a general demurrer, a general denial, and a special plea alleging that the engine, when it was furnished to Davenport on or about the night of November 2, 1905, was in a good and safe condition and working order, and that the said Davenport, without any fault of the defendant, its agents or employés, negligently permitted the water in the boiler of said engine to get too low, and to get off of the entire surface of the crown sheet, resulting in the crown sheet and the radial stays and stay bolts supporting said crown sheet becoming intensely heated—it being necessary to keep said crown sheet covered with water to prevent it becoming too heated—and as a result of such intense heat and the heated condition of said crown sheet and of the radial stays and stay bolts, all became greatly weakened, and caused the boiler of said engine to explode, and thereby to kill the said Davenport; that the explosion of the engine, if not caused as above stated, was caused by the said Davenport negligently allowing the crown sheet and sides of the fire box to get too low in water, allowing the water to get off of the same, and the action of the fire, after the water was off the crown sheet, was to intensely heat said parts; and that the said Davenport, after the water had gotten off said crown sheet and sides of the fire box, negligently turned cold water upon said intensely heated parts, causing the boiler of said engine to explode, without fault on the part of defendant. Defendant further alleged that it used the greatest amount of care and caution in furnishing Davenport a safe, sound, and serviceable engine, and safe and sound appliances to run this engine, and used the greatest care and caution to keep the said engine and appliances in good condition, all of which it did; that it, its agents and employés, made frequent and careful examination of said engine and its appliances at frequent intervals prior to the accident for the purpose of detecting any defects or unsafeness therein, said examinations having been made with the greatest care and caution; and that no such defects were found, and, if any existed, they were hidden, and latent, and unknown to this defendant, its agents or employés, and were such defects that the most careful examination by experts would not reveal, and for which defects, if they existed, this defendant would therefore not be liable.

The case was tried before a jury on March 29, 1907, and resulted in a verdict for $32,000 in favor of appellees, apportioned as follows: To Sarah P. Davenport, $8,000, and the same amount to each of the three minors. Appellant's motion for new trial having been overruled, the case is properly before this court on appeal.

Appellant insists, under its first assignment of error, that the trial court erred in not granting it a new trial upon the ground of newly discovered evidence. This evidence tended, it seems, to show that the engineer, Davenport, and his fireman were asleep before, and possibly at the time, the engine exploded and was, doubtless, material testimony bearing on the principal issue in the case, namely, whether said engine was caused to explode by reason of the defective condition of its boiler, or on account of the crown sheet of the boiler and the radial stays and stay bolts supporting the same becoming too greatly heated, and thereby weakened, through the negligence of the deceased, Davenport, in allowing the water to get too low in said boiler. But we are of the opinion that the diligence used to ascertain, before the trial, the existence of said testimony, was insufficient. The record discloses that all of the witnesses, whose affidavits are attached to and offered in support of the defendant's motion for a new trial, and by whom defendant proposed to prove the new matter therein set up, lived in Ellis county at the time of the accident resulting in Davenport's death, and with the exception of two, Chapman and Hesser, were in the employ of defendant, and interviewed by its claim agent, Culver, whose special duty was, it seems, to ascertain the facts in the case, immediately after said accident, concerning the cause or causes thereof. Of these witnesses, Jumper and McDonald, who were the conductor and rear brakeman, respectively, of the train that was being drawn by the engine when it exploded, and Hickox and Straughan, attended court as witnesses in the case during the term at which it was tried, and at the preceding term thereof. They were talked to by one of defendant's attorneys who took part in the preparation and trial of the case, with a view of ascertaining what their testimony would be. They testified upon the trial, and were not unfriendly to the defendant, and yet it does not appear that Culver, defendant's said claim agent, or either of its attorneys, asked said witnesses about the matters set forth in their affidavits. It does appear that the witnesses were requested to state fully all they knew concerning the accident, and that neither of them disclosed any of the matters contained in their affidavits; but no specific question was propounded to draw out or elicit said matters, and the witnesses declare they were not related because not inquired about. It has been repeatedly held that a party applying for a new trial upon the ground of newly discovered evidence must not only satisfy the court that the evidence has come to his knowledge since the trial, but also that it could not have been discovered before the trial by the exercise of proper diligence. In the early case of Sweeney v. Jarvis, 6 Tex. 36, Judge Wheeler, in discussing this question, after laying down the rule substantially as above stated, says: "It is especially requisite that the party applying (for new trial) make his vigilance apparent, for if it is left even doubtful that he knew of the evidence, or that he might but for negligence have known and produced it, his application may well be refused." Scranton v. Tilley, 16 Tex. 183; Adams v. Eddy et al. (Tex. Civ. App.) 29 S. W. 180; Conwill v. Railway Co., 85 Tex. 96, 19 S. W. 1017; Pears v. Albea, 69 Tex. 444, 6 S. W. 286, 5 Am. St. Rep. 78; Railway v. White, 80 Tex. 211, 15 S. W. 808. It has also been held that the granting or refusing of a new trial, while not exclusively so, is largely in the discretion of the trial judge, and that his refusal of it will not be revised by an appellate court, "unless it appears that such discretion has not been exercised according to the established rules of law and the principles of adjudged cases." Mitchell v. Bass, 26 Tex. 372.

The issue, as above stated, upon which the newly discovered evidence bore, was clearly defined by the pleadings; the defendant claiming that the engine was caused to explode solely on account of neglect or carelessness of the engineer, Davenport. No inquiry, it occurs to us, would be more promptly and naturally suggested, in the investigation and search for testimony to sustain this contention, than "what was the condition of the engineer, Davenport, at...

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