International & G. N. R. Co. v. Cook
| Decision Date | 26 May 1897 |
| Parties | INTERNATIONAL & G. N. R. CO. et al. v. COOK.<SMALL><SUP>1</SUP></SMALL> |
| Court | Texas Court of Appeals |
Appeal from district court, Anderson county; James R. Burnett, Judge.
Suit for personal injuries by J. M. Cook against International & Great Northern Railroad Company and T. M. Campbell, receiver of the company. Judgment for plaintiff. Defendants appeal. Affirmed.
G. H. Gould, for appellants. McMeans & Gill, for appellee.
This appeal is from a judgment for $6,500 recovered by the appellee, J. M. Cook, against the International & Great Northern Railroad Company, for personal injuries inflicted on him through the negligence of T. M. Campbell, the receiver of the company, while its road was operated by him. This is the third appeal from judgments in favor of appellee, and it is unnecessary for us to make an extended statement of the case, as it can be found in the decisions of the courts on former appeals. Campbell v. Cook (Tex. Civ. App.) 24 S. W. 977; Id. (Tex. Sup.) 26 S. W. 486; and Railroad Co. v. Cook (Tex. Civ. App.) 33 S. W. 888.
Conclusions of Fact.
The appellee, J. M. Cook, was, on the 10th day of November, 1891, in the employ of T. M. Campbell, receiver of appellant company, as a brakeman; and when he was in the discharge of the duties of his employment, endeavoring to remove a pin from the drawhead of a car preparatory to making a coupling, the conductor of the train on which he was employed, who was also a servant of said receiver, gave the engineer a signal to "back up" the train, and, in obedience to the signal so given, the cars attached to the engine were pushed against the car from which appellee was trying to draw the pin, and appellee was thereby caught and mashed between the cars, and serious and permanent injuries inflicted upon his person, from which he was damaged in the sum of $6,500. The conductor who gave said signal was wholly incompetent to discharge the duties of his employment; and such incompetency was known, or could have been known, by said receiver, by the exercise of ordinary care and prudence, which, through negligence, he failed to exercise. But the appellee was ignorant of the incompetency of said conductor, and presumed, as he had a right to, that the conductor was competent to discharge the duties of his employment. The signal given by the conductor would not, under the circumstances, have been given had he been competent to discharge his duties, and the negligence of the receiver in retaining said conductor in his employment after he was charged with knowledge of his incompetency was the proximate cause of appellee's injuries, the appellee being guilty of no negligence contributing thereto. After appellee was injured through the negligence of said receiver, the receiver was discharged, and the road, together with all the property of the railroad company, was, by an order of the court which appointed the receiver, returned to the International & Great Northern Railroad Company.
Conclusions of Law.
1. The petition of the plaintiff, having alleged that, pending the suit, the receiver was discharged, the receivership closed, and the railroad and property of the company delivered back without sale to the International & Great Northern Railroad Company, stated a cause of action against said company. Yoakum v. Kroeger (Tex. Civ. App.) 27 S. W. 953; Fordyce v. Du Bose, 87 Tex. 78, 26 S. W. 1050; Railroad Co. v. Cook (Tex. Civ. App.) 33 S. W. 272; Howe v. St. Clair (Tex. Civ. App.) 27 S. W. 802; Bonner v. Blum (Tex. Civ. App.) 25 S. W. 60. The receiver having been discharged, and the property of the company returned to it without sale, it was not necessary to allege and prove the investment of the earnings of the receiver in betterments.
2. It was not error for the court to refuse to instruct the jury at appellants' request: "That if plaintiff was injured by his own negligence and carelessness, or the negligence or carelessness of his fellow servants, he cannot recover, and the conductor and all other trainmen were his fellow servants." This charge would prevent the plaintiff from recovering upon his cause of action,—the negligence of the receiver in retaining in his employment a servant known by him to be incompetent, whose incompetency caused appellee's injuries. Railroad Co. v. Cook (Tex. Civ. App.) 33 S. W. 888.
3. Special charges Nos. 4, 5, 6, 7, 8, 10, and 13 were properly refused by the court, because substantially given in the charge of the court, and for that reason it was not error to refuse them.
4. The court did not err in refusing to instruct the jury, at appellant's request, that if plaintiff knew of the conductor's incompetency, or had the same means of knowing such incompetency as defendants had, he cannot recover. The jury had been...
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