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

• Decision Date: 10 December 1913
• Parties: HOUSTON & T. C. R. CO. v. MENEFEE.
• Court: Texas Court of Appeals

162 S.W. 1038

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

Court of Civil Appeals of Texas. Austin.

December 10, 1913.

Rehearing Denied January 21, 1914.

Appeal from District Court, Robertson County; J. C. Scott, Judge.

Action by J. A. Menefee against the Houston & Texas Central Railroad Company. From a judgment for plaintiff, defendant appeals. Affirmed.

V. B. Hudson, of Bryan, Will C. Perry, of Franklin, Baker, Botts, Parker & Garwood, of Houston, and Stribling & Stribling, of Waco, for appellant. Woods & Harris, of Houston, and H. S. Morehead, of Franklin, for appellee.

KEY, C. J.

This is a personal injury suit, the trial of which resulted in a verdict and judgment for the plaintiff for $15,000, and the defendant has appealed.

On the occasion in question the plaintiff was switch foreman in the defendant's yard at the town of Hearne, and while he and the other members of the crew were attempting to place an engine and tender on the main track of defendant's road by running it onto and along what is known as a passing track, such engine and tender were derailed, and as a result of which the plaintiff alleged that he sustained certain injuries. In the yard in question the defendant maintained an interlocking plant. The plaintiff alleged that the defendant's employé who was operating the interlocking plant was guilty of negligence in giving the signal and notifying the plaintiff and his crew that the tracks were properly lined, so that the engine and tender could enter upon the passing track and go onto the main track, and was also guilty of negligence in taking away and changing the main line switch before the engine and tender had stopped.

With the possible exception of the twelfth paragraph, the main charge of the court comprised what we regard as a full and reasonably accurate statement and presentation of the law of the case; and, in addition thereto, the court gave four special charges requested by the defendant. But one complaint is urged against it, and that is that there was no testimony tending to show that the employé who was operating the interlocking plant took away and changed the main line switch before the engine and tender had stopped, and therefore it was error for the court to submit that question to the jury. We overrule that objection, and hold that the plaintiff submitted testimony which justified the court in submitting that issue.

Appellant has also assigned error upon the action of the court in refusing to give special instructions Nos. 2, 6, 7, and 8. No. 2 embodied an instruction to the effect that if the jury found that if the injury complained of was caused by the plaintiff's negligence in giving the engineer the signal to move the engine forward along the passing track before the operator of the interlocking plant had time to line the tracks, and...