International & G. N. Ry. Co. v. Williams

• Decision Date: 27 November 1891
• Citation: 18 S.W. 700
• Parties: INTERNATIONAL & G. N. RY. CO. v. WILLIAMS.
• Court: Texas Supreme Court

18 S.W. 700

INTERNATIONAL & G. N. RY. CO. v. WILLIAMS.

Supreme Court of Texas.

November 27, 1891.

Appeal from district court, Smith county; FELIX J. McCORD, Judge.

Action by Henry Williams against the International & Great Northern Railway Company. From a judgment for plaintiff, defendant appeals. Reversed.

Gould & Camp, for appellant. H. B. Marsh, for appellee.

STAYTON, C. J.

Appellee, while in employment of appellant as a section hand, was injured while on a hand-car that was struck by another following it, and he claims that this resulted from a defective brake on the hindmost car. After plaintiff had announced himself ready for trial, defendant sought a continuance or postponement of the case until a later day of the term, and also presented a motion for rule on plaintiff to give security for costs. The application for continuance did not show sufficient diligence to procure the attendance of the witnesses for whose absence a continuance or postponement of the trial was asked, and the court overruled the motion for rule for security for costs on the ground that the motion came too late, after plaintiff had announced himself ready for trial, and on the further ground that the court had by previous order set the case for trial on the day it was called. The statute seems to contemplate that such motions may be made and rule granted "at any time before final judgment," (Rev. St. art. 1436;) but if a court should overrule such a motion, urged within the time prescribed, it would seem that a judgment against a defendant, which fixes upon him liability for all costs, ought not to be reversed on this ground, unless it be shown that some injury resulted from the ruling. It appears from the evidence of the plaintiff himself that he had been in the employment in which the hand car claimed to have been defective was used for about six months, and that he knew of the defect within two days after he commenced work, and from time to time made the defect known to the section foreman, who repeatedly promised to have the defect repaired, but never did so. Notwithstanding these facts, he continued in the service in which the car was used. With others, the court gave the following charge: "The plaintiff would not be guilty of negligence in working with defective machinery, though he might know of its defects, if he had informed the master or his agent of the defect, and the master or his agent had promised to fix the machinery." The usual charge in reference...