Houston & T. C. Ry. Co. v. Lee

• Decision Date: 31 January 1888
• Citation: 7 S.W. 324
• Parties: HOUSTON & T. C. RY. CO. v. LEE.
• Court: Texas Supreme Court

7 S.W. 324

HOUSTON & T. C. RY. CO. v. LEE.

Supreme Court of Texas.

January 31, 1888.

Error from district court, Brazos county; NORMAN G. KITTRELL, Judge.

This action was brought by Miss Lizzie Lee against the Houston & Texas Central Railway Company to recover damages for personal injury. Plaintiff recovered $6,933. Defendant brings error from a judgment of the court overruling a motion for a new trial.

O. T. Holt, for plaintiff in error. Spencer Ford, for defendant in error.

GAINES, J.

This suit was brought in the court below by defendant in error against plaintiff in error to recover damages for personal injuries alleged to have accrued to her by the derailment of a coach upon the company's railroad upon which she was traveling as a passenger. The third and fifth are the only assignments of error relied upon in the brief of the plaintiff in error. Taking them in reverse order they are as follows: (5) "Because the verdict of the jury is contrary to the law and evidence in this, that all the evidence shows that the accident was caused by some malicious person removing the taps, nuts, bolts, and spikes from the rails, and that these acts and doings threw the train from the track." (3) "Because the verdict of the jury is grossly excessive in this, it was shown that immediately after the accident the plaintiff, Lizzie Lee, was attending parties and dances in the neighborhood in which she lived, and participated in all dances, and remained at some as late as one o'clock A. M."

An outline of the evidence bearing upon the fifth assignment is as follows: The plaintiff proved that she was a passenger on the regular passenger train of the defendant company which went north from Houston on the night of the 13th of November, 1884, and that she had purchased a ticket; that just before reaching Clear creek, about two miles south of Hempstead, six of the cars left the track, and that upon which she was traveling was thrown down the embankment, whereby she received serious personal injuries. Testimony was also introduced by her in chief tending to show that at the time the accident occurred the train was running at high rate of speed, and that at the point where the cars were thrown from the track the ties were rotten and the road-bed in an unsafe condition. The defendant on the other hand introduced witnesses who swore that its road-bed at the place of the accident was in a safe condition; that the ties were sound and laid with first-class heavy steel rails; and that its employes in charge of the train were careful and competent men. Several witnesses, some of whom were employes and some passengers on the train, also testified that the train was not running dangerously fast. There was also evidence tending to show, by the time which had been consumed in running from Houston and intermediate stations to the place of the accident, that the rate of speed was but little, if any, in excess of schedule time of trains making that trip. The cars left the track on the right side, and the first rails which were displaced, counting from the south, were carried down the embankment by the rear wheels and were found under them. The rail immediately in rear of the first that was detached remained in its place. The witnesses swore that there was no signs of violence upon it at the point of disconnection. There were nuts and bolts found near the joint, which bore no signs of having been torn asunder by force. An angle-plate was found down the embankment, which was not warped or bent, and had fresh rust upon one side of it. Defendant's witnesses also testified the spike-holes in the cross-ties, from which the rails were displaced were not enlarged as they would have...