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

• Decision Date: 16 November 1892
• Citation: 23 S.W. 146
• Court: Texas Court of Appeals
• Parties: INTERNATIONAL & G. N. RY. CO. v. TURNER et al.

Page 146

23 S.W. 146

INTERNATIONAL & G. N. RY. CO. v. TURNER et al.

Court of Civil Appeals of Texas.

November 16, 1892.

Appeal from district court, Leon county; G. M. Smither, Judge.

Action by Katie Turner and others against the International & Great Northern Railway Company. Judgment for plaintiffs. Defendant appeals. Reversed.

Cate & Teagarden, for appellant. F. M. Etheridge, for appellees.

WILLIAMS, J.

This is an action by the widow and children of Lee Turner to recover damages resulting from his death, alleged to have been caused by negligence of defendant, while said Turner was in its service. The negligence charged against the defendant consisted in a failure to furnish a fireman upon a switch engine in the yard at Willis, where Turner was killed, and to keep in proper repair the frog of a switch in which Turner's foot was caught while attempting to uncouple cars. Turner was master of defendant's yard at Willis, and had been for about two years prior to his death. On October 5, 1888, during the night, Turner entered between two cars of a freight train, to uncouple them while they were slowly moving, and, finding difficulty in drawing out the pin, he walked along with the running cars until he reached the switch, when his foot was caught between the two rails, and held fast until he was thrown down and run over. When he realized that his foot was fastened, he gave the alarm, and a servant of the defendant signaled to the engineer to stop. The engineer was at his station on the side of the engine opposite to that on which stood the servant who gave the signal, and did not, therefore, see it. Had there been a fireman on the engine, his station would have been on the right of the engine, from which the signal came; and the plaintiffs' contention is that he would have received the warning, and the train could have been stopped before it passed over Turner's body. Turner knew that there was no fireman upon the engine. It had been operated by an engineer alone during the whole of the time of Turner's service at that place. To meet the objection that he assumed the risk resulting from the absence of a fireman, plaintiffs alleged, and sought to prove, that shortly before his death he protested against the use of the engine without a fireman, and received from his employer an assurance that one would be supplied in a reasonable time, and a request to continue in the service, and that, upon faith in such assurance and promise, he had continued in the discharge of his duties not longer than was reasonable, at the time he was killed. The only evidence upon this point is in the statement of the witness May, as follows: "I heard Mr. Turner complain to Mr. Mulvey, the train master, about the want of a fireman on said engine. I cannot say the fireman and engineer were under Mr. Mulvey's control or charge. I do not suppose they were. But at the same time we had a channel of business to go through. We had to make an application to Mr. Mulvey, and him to the officer over him. The yard force at Willis was under his (Mulvey's) charge, in his division. As nearly as I recollect, the conversation between Turner and Mulvey with reference to a fireman, was about this: There came up a little dispute about the delay of trains. Mr. Mulvey came up to settle the matter one night during my service, and Mr. Turner explained to Mr. Mulvey...