Missouri, K. & T. Ry. Co. of Texas v. Smith

• Decision Date: 09 February 1907
• Parties: MISSOURI, K. & T. RY. CO. OF TEXAS v. SMITH.<SMALL><SUP>*</SUP></SMALL>
• Court: Texas Court of Appeals

99 S.W. 743

MISSOURI, K. & T. RY. CO. OF TEXAS v. SMITH.^*

Court of Civil Appeals of Texas.

January 26, 1907.

Rehearing Denied February 9, 1907.

Appeal from District Court, Hunt County; T. D. Montrose, Judge.

Action by Elijah Smith, by his father as next friend, against the Missouri, Kansas & Texas Railway Company of Texas. From a judgment for plaintiff, defendant appeals. Affirmed.

T. S. Miller and Perkins & Craddock, for appellant. Evans & Elder, for appellee.

TALBOT, J.

Elijah Smith, a minor, suing by his father as next friend, brought this suit against appellant to recover damages for personal injuries alleged to have been received by him through the negligence of appellant's servants. It was alleged, in substance, that appellant owned and operated a creosote plant on its line of railroad near Greenville, Hunt county, Tex., for the purpose of treating its cross-ties; that this plant consisted of cylinders, dinkey engines, tramways or railroad tracks, tram cars, engines, pulleys, cables, etc.; and there is constructed on the grounds and right of way a platform and narrow gauge railroad tracks, commonly called "tramways," extending from the cylinders alongside of and parallel with appellant's main line of road, a distance of several hundred feet, upon which appellant operated a number of cars known as "tram cars," constructed after the order of, and similar to, the usual hand or push car, for the purpose of transporting cross-ties from a point on the main line or switch tracks, a distance of several hundred feet, to the cylinders and return; that said cross-ties were transported by appellant over the main line of its road to said creosote plant, and there loaded on the tram cars, carried to the cylinder, and treated, after which they were carried back on the said tram cars over the tramways, where they were unloaded either along appellant's tracks, or put into its freight cars; that said tramway and tram cars were used in connection with appellant's main line of railroad as an essential auxiliary and aid thereto, and said tram cars operated over the tramway by means of steam power and by hand; that when the ties loaded on said cars were treated they were drawn from the cylinders by means of a cable operated by a dinkey engine to a certain point, and there taken in charge by a number of employés, who, with their hands, by pushing and pulling, propelled them to the other end of the platform; that in drawing said cars from the cylinders onto the platform, it was a frequent occurrence for them to be derailed at or about the point where they were carried by the cable, and, when so derailed, it became the duty of the crew operating the car to replace it on the track, and thence propel it to point of destination; that the method of replacing the car was that the foreman of the crew would direct the men, some on one side of the car, and some on the other side, with pieces of iron rails, to lift the car on one side and to pry it up on the other, and, when raised above the track, it would be pushed by the men doing the lifting back onto the track; that appellee, on July, 22, 1904, was engaged in the service of appellant, working at its said creosote plant, and his duty, among other things, was to assist in operating the tram cars; that on said date one of appellant's tram cars, loaded with heavy ties, was derailed, and appellee and six other men were directed by the foreman to replace it on the track and propel it by hand to the point of destination; that appellee and three other men, who were furnished with a piece of rail, placed it under the car, for the purpose of lifting it up, while two men on the opposite side placed their piece of rail under the car, for the purpose of prying it up on that side; that when appellee and the three other men had raised the car, for the purpose of shoving it back on the track, the whole weight of the car, because of the negligence of one, or both, of the two men who were prying up the car, either by permitting through inattention their rail to slip, or failure to take sufficient hold under the car or channel bar, or by negligently slacking up or turning loose the rail with which they were prying, or because the rail or channel bar was defective, in that it was old, worn, and out of repair, which caused the rail to slip, etc., the weight of the car was thrown on appellee and the three other men with him, straining, injuring, and rupturing appellee on both the right and left side to his damage in the sum of $20,000. Appellant pleaded general and special demurrers, a general denial, assumed risk, and that if appellee sustained any injuries the same were caused and contributed to by his own want of care or by that of his fellow servants. The case was tried, and verdict and judgment rendered for appellee in the sum of $1,750, from which appellant appeals.

Material allegations in appellee's petition were sufficiently established by the evidence to justify the verdict of the jury. It was shown that the tracks of the tram railroad on which the tram cars were used were 24½ inches wide and about 870 feet long, running near to and parallel with appellant's main line of road; that the rails were made of iron or steel, weighed 35 pounds per yard, and 3¼ inches high. The tram cars are built of steel or iron, and weighed from 600 to 800 pounds; their width across the top of the standard is 5 feet and 6 inches, and where they run on the rail from wheel to wheel or flange to flange, is just 2 feet.

Appellant's first assignment of error is, in substance, that the court erred in overruling its ninth special exception to appellee's petition, because the allegations of said petition show that the tram car which appellee was assisting to replace on the tram railway was not a...