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

• Decision Date: 30 November 1895
• Citation: 33 S.W. 684
• Parties: MISSOURI, K. & T. RY. CO. OF TEXAS v. GORDON.
• Court: Texas Court of Appeals

33 S.W. 684

MISSOURI, K. & T. RY. CO. OF TEXAS v. GORDON.

Court of Civil Appeals of Texas.

November 30, 1895.

Appeal from district court, Grayson county.

Action by H. C. Gordon against the Missouri, Kansas & Texas Railway Company of Texas for personal injuries. Plaintiff had judgment, and defendant appeals. Affirmed.

LIGHTFOOT, C. J.

The following is a correct statement of the case, and is adopted: H. C. Gordon instituted this suit June 16, 1892, in the district court of Grayson county, Tex., against the Missouri, Kansas & Texas Railway Company of Texas. The action was brought to recover damages for personal injuries alleged to have been received June 19, 1891, while plaintiff was employed as a fireman upon defendant's line of railway, by the fall of a spout of a water tank, maintained for furnishing water for engines at Little River, which fall and the injury to plaintiff were alleged to have been caused by negligence in suffering the water spout and fastenings to become and remain in a defective and dangerous condition. The petition alleged that plaintiff was employed at the time by the receivers of the Missouri, Kansas & Texas Railway Company, the then owner of the road; that the receivers were discharged, and the road returned to the company, increased in value by the expenditure of large amounts of its net earnings in the hands of the receivers in betterments on the road; and that the road was afterwards transferred to the defendant, in pursuance of and by authority of the special act of the legislature of the state of Texas authorizing a Texas corporation to acquire the lines of railway within this state then owned by the Missouri, Kansas & Texas Railway Company, approved April 16, 1891; and that by virtue of said act, and the acquisition of the line of railway thereunder, the Texas company became liable for plaintiff's demand. Plaintiff's damages were laid at the sum of $30,000. Defendant answered by general denial. Upon trial of the case in the court below, January 13, 1894, plaintiff recovered judgment for $5,000, from which judgment the company appeals.

The facts proved, and the verdict and judgment thereon, justify the conclusions: That in June, 1891, appellee was a fireman in the employ of Eddy and Cross, receivers of the appellant company, upon its line of railway between Alvarado and Taylor. It was a part of his duty as such fireman to take water from the tanks along the line for the use of the engine upon which he worked, which was done by getting on the back end of the engine tank and pulling the spout of the stationary water tank down to the engine. There were rods and a valve at the back of the spout, which opens and lets the water into the engine tank. The spout was made of metal, was eight or nine inches in diameter at the small end, and about one foot at the large end, and was about eight or nine feet long, being so attached to the stationary tank, and arranged with weights and pulley, that when released from the engine, after being used, it would go back to its upright position. June 19, 1891, about 4 o'clock a. m., while it was yet dark, the engine on which appellee was working stopped at one of such stationary tanks, at Little River, and it became necessary for appellee to transfer water from such tank to the engine, which he did in the usual way, and when the metal spout was released from the engine it fell on appellee and injured him. The apparatus for handling such spout and the stationary tank to which it was attached were defective and partly rotten, and had been in that condition for some weeks; and such defects were known to the receivers of the company, or could have been known by the use of ordinary care; and they were negligent in allowing the same to remain in that condition. That such apparatus was frequently used by appellee, and he used ordinary care in such use, but the defects were of such a nature that they were not open to ordinary observation, and he did...