Houston & Tex. Ry. Co. v. Oram

• Decision Date: 01 January 1878
• Citation: 49 Tex. 341
• Parties: HOUSTON AND TEXAS RAILWAY CO. v. HENRY ORAM.
• Court: Texas Supreme Court

49 Tex. 341

HOUSTON AND TEXAS RAILWAY CO.

v.HENRY ORAM.

Supreme Court of Texas.

1878.

ERROR from Bastrop. Tried below before the Hon. J. P. Richardson.

June 26, 1872, appellee, who was a brakeman and baggage-master on the Houston and Texas Central Railway Company, while attending to his duties as brakeman, and ascending a side ladder on a car, was knocked off by the projecting frame-work of a water-tank belonging to the company. The tank was closer than usual to the road; the frame-work not far enough from the side of the car to allow a man to ascend the car with safety. It was Oram's duty to be at the brake at the stopping-places, and not to await the signals. He was going to his place, in obedience to the signal, in haste. The engineer did not check the speed of the train, which was moving from twelve to fourteen miles per hour.

When struck, Oram fell thirty-nine feet; by the fall, his thigh-bone was broken, his hip-joint crushed, his back injured, and a slight injury was made to his face. The injury caused great suffering and permanent disability. Oram was a laboring man; made sixty-five dollars per month. Since the injury, he is unable to do anything. There were ladders on each side and end of the cars. The injury would not have happened, had Oram gone by any of the other ladders.

The pleadings on the part of plaintiff alleged the injury, and that it was from gross and willful negligence. Exemplary damages were claimed, including attorney's fees, &c.

The defendant pleaded in abatement. This plea seems never to have been called to the attention of this court until the motion for new trial. The defendant pleaded negligence on the part of the plaintiff, general denial, &c.

On the trial, after the testimony touching the injury, the plaintiff proved, by George Goldthwaite, as follows: “I am an attorney-at-law; that is my profession and business. I can't say what would be a reasonable fee for the prosecution of a case of this character. My practice has generally placed me on the other side. Attorneys usually make their contracts for contingent fees for one-half of the amount recovered; and I have known as much as two-thirds of the amount to be contracted for.”

The court instructed the jury as follows: “The plaintiff sues to recover damages for injuries sustained by him in an accident, caused, as he alleges, by the carelessness or negligence of the defendant or its agents.

A railroad company is liable for an injury done one of its employees or servants in the line of his duty, where the injury is caused by the carelessness or negligence of another employee or servant who, by his employment, is superior to or is placed in control of the one injured.

Such a company is bound to provide a safe road, cars, machinery, and other appliances for running the road, and competent engineers and agents; and if it fails to do so, it is liable for injuries to any person in consequence of such failure.

The above rule is subject to the qualification, that their employee or servant is bound to exercise due and proper care himself, and if the injury or accident is caused in any degree by his own carelessness or negligence, the company is not liable.

If you find, from the evidence, that the plaintiff, acting in the line of his duty, without any carelessness or negligence on his part, was injured by or through the carelessness of the conductor or engineer of the train on which he was employed; or if the accident or injury was caused by the improper construction of the road, the tank, or the cars, then you should return a verdict for the plaintiff for such amount as you deem just and proper,-- considering not only the actual loss to him of time, of wages, expenses of witnesses, counsel fees, and damages already incurred, but he will be compensated for the pain and suffering, the anguish of mind, considering his condition, and for the probable disadvantages to him in the future, in consequence of the injury.

If you find that the accident was caused in whole or in part by the carelessness or negligence of the plaintiff, then you will return a verdict for the defendant.

If you find that the accident happened through no carelessness or negligence of the railroad company in the construction of the road and machinery, or in the selection of their agents or servants, and no carelessness on the part of the conductor or engineer, then you will find for the defendant.”

The defendant asked the court to instruct the jury: “If the plaintiff Oram could, by the use of ordinary care and caution, have avoided the danger or prevented the injury, he is not entitled to recover.

To entitle the plaintiff Oram to recover in this suit, he himself must have been blameless.

Ordinary care and caution is such care and caution as a prudent man would exercise under similar circumstances.

If you believe that Oram did not use such ordinary care or caution, but, on the contrary, heedlessly, negligently, and carelessly exposed himself to...