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

• Decision Date: 08 April 1887
• Parties: INTERNATIONAL & G. N. R. CO. v. UNDERWOOD.
• Court: Texas Supreme Court

4 S.W. 216

INTERNATIONAL & G. N. R. CO. v. UNDERWOOD.

Supreme Court of Texas.

April 8, 1887.

Appeal from Bexar county.

McLeary & Barnard, for appellant. Houston Bros., for appellee.

GAINES, J.

This action was brought in the court below by appellee against appellant, to recover damages for personal injuries. The statement of facts having been stricken out on motion of appellee at the last term of this court, there are many questions raised in appellant's brief which we need not consider. By its first and second assignments of error appellant complains that the court erred in overruling its general and special demurrers to plaintiff's petition. The main ground of the demurrers is "that the petition nowhere alleges that the defendant undertook to transport plaintiff as far northward from San Antonio as Corbin station, where the accident is alleged to have occurred." The allegations in the petition in reference to this matter are "that heretofore, to-wit, on or about the third day of July, 1883, the defendant, acting as a common carrier of passengers and freight, for a valuable consideration, undertook to transport the plaintiff as a passenger over the said line of road northwards from San Antonio, towards St. Louis, Missouri; that plaintiff, on said third day of July, 1883, at the instance of defendant, and under the instructions and directions of its officers, agents, and employes, entered the car or `caboose' of the defendant provided for his use and occupancy, and the defendant, acting through its agents, officers, and employes, started said car and train on its journey over its line of road to the northward; that the plaintiff conducted himself in a prudent manner, and was guilty of no negligence or imprudence whatever; that when said car and train reached Corbin station, about 20 miles, more or less, from San Antonio, on the defendant's line of road, which was about 11 o'clock at night on said date, the defendant, by its gross negligence and outrageous carelessness in the management and running of the trains on said road, caused the car on which the plaintiff was, it being the car furnished by the defendant for his use and occupancy, to be run into by another engine and train of said defendant, breaking the said car, scalding, burning, bruising, wounding, and crippling this plaintiff, throwing him from said car, dragging him upon the track and road-bed, breaking his bones, crushing his body and limbs, tearing his clothing, and mutilating him in a horrible manner."

It is true that it is not here specifically alleged that the point at which the accident occurred is between the place of departure and that to which it was contracted that plaintiff should be carried. But we think that it appears from the averments that the plaintiff received the injuries complained of while he was being carried by defendant under its agreement, and that greater particularity than this cannot be required. We are of the opinion, therefore, that the exceptions to the petition upon this ground were properly overruled.

There were other special exceptions to the effect that the averments of the petition were not sufficient to warrant a judgment for exemplary damages, as therein claimed. But plaintiff distinctly waived his claim for such damages upon the record before the trial of the cause; and it seems from the appellant's briefs that the exceptions based upon this ground were not insisted upon in this appeal.

It is complained by the fourth assignment that the court erred in sustaining plaintiff's exceptions to so much of the defendant's answer as set up a lease for 99 years, made in 1881, by the defendant company to Missouri, Kansas & Texas Railroad Company, of defendant's road and property, and a subsequent lease by that lessee to the Missouri Pacific Railway Company, which last named corporation defendant averred was operating defendant's road at the...