International & G. N. R. Co. v. Bell

• Decision Date: 05 November 1889
• Citation: 12 S.W. 321
• Parties: INTERNATIONAL & G. N. R. CO. <I>et al.</I> <I>v.</I> BELL.
• Court: Texas Supreme Court

12 S.W. 321

INTERNATIONAL & G. N. R. CO. et al.

v. BELL.

Supreme Court of Texas.

November 5, 1889.

Commissioners' decision. Appeal from district court, Travis county; A. S. WALKER, Judge.

Maxey & Fisher, for appellant. John Dowell, for appellee.

ACKER, J.

Appellee was employed by appellant as a switchman in its yard at Austin, and had been so employed for about nine months on the 3d day of June, 1886, when, on that day, while engaged in uncoupling cars, his foot became fastened between the guard-rail and track-rail, and he was run over by a car, and received injuries that necessitated the amputation of his leg. This suit was brought to recover damages for the injury. Appellee alleged in his petition that, "owing to the insufficient manner in which the guard-rail was constructed, it prevented his foot from being withdrawn when accidentally inserted; that, had said switch on place where the rails come together been properly supplied with a proper and sufficient guard in it, then his foot would not have been caught in it." The defendant answered by general denial and special answer, setting up that its railroad was properly constructed of good material, after the usual manner of constructing first-class railroads; that plaintiff was familiar and well acquainted with said railroad, guard-rails, and switches at the place of the accident; and if there was any defect in the respect mentioned by plaintiff, or otherwise, he had full knowledge of such defects, or had equal means with defendant of discovering them, and continued in the performance of his duties without objection; and pleaded contributory negligence. There was verdict and judgment for appellee for $7,240.

Paragraphs 2 and 12 of the charge given by the court are as follows: "(2) Railways are not bound to their employes to provide the best possible appliances, but they are bound only to supply such appliances as are in common use by well-managed railways, and which they have skillfully constructed and carefully maintained in repair. They are bound to furnish such appliances as are reasonably safe and suitable, such as a prudent man would furnish if his own life were exposed to the danger that would result from unsuitable or unsafe appliances." "(12) If the track, switch, and guard, at the place of the injury, were in ordinarily good condition as to safety and fitness, as defined in section No. 2 of this charge, then the plaintiff cannot recover." It is urged that the court erred in giving...