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

• Decision Date: 18 June 1908
• Citation: 112 S.W. 808
• Parties: HOUSTON & T. C. R. CO. et al. v. KEELING.
• Court: Texas Court of Appeals

112 S.W. 808

HOUSTON & T. C. R. CO. et al. v. KEELING.

Court of Civil Appeals of Texas.

June 18, 1908.

Rehearing Denied October 8, 1908.

Appeal from Harris County Court; A. E. Amerman, Judge.

Action by G. A. Keeling against the Houston & Texas Central Railroad Company and the Missouri, Kansas & Texas Railway Company of Texas. Judgment for plaintiff, and defendants appeal. Reversed and rendered as to the Missouri, Kansas & Texas Railway Company of Texas, and reversed and remanded as to the Houston & Texas Central Railroad Company.

Baker, Botts, Parker & Garwood and Lane, Jackson, Kelley & Wolters, for appellants. F. F. & E. T. Chew and Mark G. Fakes, for appellee.

LEVY, J.

By his petition appellee sought to recover damages against the Houston & Texas Central Railroad Company and the Missouri, Kansas & Texas Railway Company of Texas for an alleged injury, claimed to have been received by him while attempting to alight from the mail coach of a Houston & Texas Central Railroad Company's passenger train at Denison, Tex., having made the run as a railway mail clerk. In accordance with the verdict of a jury a judgment was rendered in favor of the appellee jointly against each appellant company. Each appellant has filed separate assignments of error, and the same will be here disposed of separately.

The appellant the Missouri, Kansas & Texas Railway Company of Texas in its seventh assignment of error complains of the refusal of the court to give a peremptory instruction to the jury to return a verdict in its favor. Looking to the petition and the evidence in the record, we are of the opinion that this contention should be sustained. There is no evidence in the record to show that the appellee occupied the position of a passenger, or that that relation had in any wise attached with reference to the Missouri, Kansas & Texas Railway Company of Texas. He was not on any of this appellant's trains, nor was he about this appellant's trains, but his own testimony shows that he was on the Houston & Texas Central Railroad Company's train, and was attempting to alight from this train at the time he received his alleged injuries, and that it was while thus attempting to alight that he claims to have been injured. It is not shown in the evidence that any of the employés of the Missouri, Kansas & Texas Railway Company of Texas had anything to do with this train. While Hubbard, the man who was handling the truck on which appellee had unloaded the mail, was an employé of the Missouri, Kansas & Texas Railroad, yet it is not shown that he had any control or charge of this Houston & Texas Central train in any way, or that he had any duty to perform. The allegation in the petition was that this employé Hubbard was negligent in failing to warn the appellee that the Houston & Texas Central train was about to move forward. Under this allegation and the evidence the judgment could not be sustained against the Missouri, Kansas & Texas Railway Company. Because the evidence fails to show any act of omission, by any servant of the Missouri, Kansas & Texas Railway Company of Texas, involving any breach of duty, or any...