Missouri, K. & T. Ry. Co. v. Hamilton

• Decision Date: 13 February 1895
• Citation: 30 S.W. 679
• Parties: MISSOURI, K. & T. RY. CO. OF TEXAS v. HAMILTON.<SMALL><SUP>1</SUP></SMALL>
• Court: Texas Court of Appeals

30 S.W. 679

MISSOURI, K. & T. RY. CO. OF TEXAS v. HAMILTON.¹

Court of Civil Appeals of Texas.

February 13, 1895.

Appeal from district court, Raines county; E. W. Terhune, Judge.

Action by Ben Hamilton against the Missouri, Kansas & Texas Railway Company of Texas. From a judgment for plaintiff, defendant appeals. Affirmed.

On July 6, 1892, appellee, Ben Hamilton, filed his suit against the Missouri, Kansas & Texas Railway Company of Texas, in which he sued to recover damages for injuries claimed to have been inflicted upon him in an accident in the yards of appellant at Greenville, Tex. Upon the manner of the infliction of the injuries, appellee charged in his petition as follows: "That heretofore, to wit, on January 31, 1892, the defendant company, as a common carrier, owned, maintained, and operated a line of its railway through Hunt and Raines counties to Mineola, passing through the city of Greenville, in Hunt county; * * * that at Greenville, on said date, defendant had a depot for freight and passengers, and also a switch yard, with one Morgan and one Holmes as yard masters in its employ; that on said date a number of box cars had become derailed just north of defendant's depot in Greenville, and said Morgan and Holmes, with a crew of men, all employés of defendant, were engaged in putting the cars back on the track; that plaintiff was also an employé of defendant, and was subordinate to Yard Masters Morgan and Holmes, working under their superintendence, command, and control, with full authority in said Morgan and Holmes to direct the plaintiff and the other employés of defendant thus engaged in replacing said cars on the track; that, in order to get the derailed cars back, an engine approached from the north, with several box cars intervening between it and the derailed cars, and plaintiff, at the direction of said Morgan, was holding a stick against the most northern derailed car, when the engine and other cars were run down upon and against the other end of the stick so held by plaintiff, which, when so struck by the moving car, was knocked from its place, and the cars came together, and plaintiff was caught between the ends of the derailed car and the moving car, and was mashed, lacerated, bruised, and wounded between the ends of the cars and the stick he so held to such an extent that he suffered intense mental and physical pain." Following the above allegations, the plaintiff set out minutely and at great length the injuries inflicted upon him, and the mental and physical suffering thereby caused him. After thus stating his injuries, plaintiff sets forth in his petition the negligence of defendant, as follows: "But for such negligence of defendant, proximately causing such injuries, he would not have been thus injured, and plaintiff charges defendant's negligence as follows: First. That plaintiff was ordered by Yard Master Morgan to hold the stick of wood to the end of the derailed car, to be backed down upon by the car being moved; that he held the stick at the place and in the manner as placed and directed by Morgan, without knowing of any danger in thus holding it; that when the moving car came against the end of the stick it was knocked or slipped from its place, flew to one side, and permitted the ends of the cars to come together, cutting, mashing, and bruising plaintiff, and the end of the stick cut and plowed through plaintiff's flesh; that said stick flew or slipped from its place because it was improperly and negligently placed by Morgan, or was negligently directed to be placed by him as it was, all of which was known to him, or could have been known by him by the use of reasonable and ordinary care, and all of which plaintiff was ignorant of, and could not have known by the use of ordinary care; that plaintiff was assured by Morgan that there was no danger in the operation, and plaintiff, under his orders, directions, and assurances, held the stick of wood, and was injured because of the negligence of said Morgan in placing said stick negligently, or in causing it to be thus placed. Second. Plaintiff charges further that said injuries would not have happened to him but for the great force and violence with which the car was backed and run against said stick so held by him; that the said Morgan or Holmes had charge of the said squad of men thus engaged in said work, with full authority to direct, command, and superintend them, and the work then being done, and that either said Morgan or Holmes caused said engine and cars...