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

• Decision Date: 01 February 1905
• Citation: 85 S.W. 492
• Parties: HOUSTON & T. C. R. CO. v. GOODMAN.<SMALL><SUP>*</SUP></SMALL>
• Court: Texas Court of Appeals

85 S.W. 492

HOUSTON & T. C. R. CO. v. GOODMAN.^*

Court of Civil Appeals of Texas.

February 1, 1905.

Appeal from District Court, Llano County; Clarence Martin, Judge.

Action for personal injuries by Thomas Goodman against the Houston & Texas Central Railroad Company. From a judgment for plaintiff, defendant appeals. Affirmed.

S. R. Fisher, J. H. Tallichet, and Baker, Botts, Parker & Garwood, for appellant. F. J. Johnson and Chas. L. Lauderdale, for appellee.

KEY, J.

This is a personal injury suit, resulting in a verdict and judgment for the plaintiff for $2,250, and the defendant has appealed.

Plaintiff charged in his petition that as an employé of the Texas Telegraph & Telephone Company he and other employés, with the consent of the defendant, were operating a hand car upon the defendant's railroad track; that while he and his associates were off the hand car repairing the telephone line, one of the defendant's railroad trains, negligently failing to give the usual and proper signals, approached the hand car at a rapid rate of speed, and that the plaintiff, becoming satisfied that, if the hand car was not removed from the track, the railroad train would run into it, wreck the hand car, damage property thereon belonging to the plaintiff's employer, and seriously injure if not kill persons operating or riding on the train; and to avert such injury he, without fault or negligence, and by the most extreme efforts on his part, lifted the hand car from the track, and caused it to slide down an embankment, and that in so doing he exerted and strained himself to such an extent as to cause rupture of his abdomen and other serious physical injuries. The defendant, in its answer, interposed a general demurrer, special exceptions, a general denial, and pleas of contributory negligence and assumed risk. The case was submitted to the jury in a very elaborate charge prepared by the court, and supplemented by certain special instructions given at the request of the defendant.

There is testimony in the record which sustains the findings of the jury in favor of the plaintiff on all the issues submitted to them, and we therefore overrule all the assignments of error which assail the verdict.

We also overrule the assignments which complain of the action of the court in refusing to sustain the general demurrer and special exceptions to the plaintiff's petition. We do not agree with appellant that the petition shows on its face that the proximate cause of the...