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

• Decision Date: 21 February 1900
• Court: Texas Court of Appeals
• Parties: MISSOURI, K. & T. RY. CO. OF TEXAS v. COX.

55 S.W. 354

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

Court of Civil Appeals of Texas.

February 21, 1900.

Appeal from district court, Williamson county; R. E. Brooks, Judge.

Action by J. M. Cox against the Missouri, Kansas & Texas Railway Company of Texas. Judgment for plaintiff, and defendant appeals. Affirmed.

Brown, Lane & Garwood, for appellant. J. W. Parker, for appellee.

FISHER, C. J.

This is an action by appellee, Cox, against the railway company for damages arising from injuries sustained by being thrown from the top of the caboose of a freight train, upon which at the time he was engaged in the performance of his duties as a brakeman. Verdict and judgment in the court below for the sum of $3,000 was in his favor against the railway company. The cause of his fall and the negligence alleged is stated in the following averments of the petition: "That on, to wit, July 29, 1897, plaintiff was in the employ of defendant as a brakeman on freight trains operated by it on its said railway, and on said date he was in actual service upon a freight train bound south from Hillsboro to Smithville, on defendant's railway, and, on the said train approaching the water tank at Sayer's Station, it became his duty to pass from the top of the caboose onto the forward portion of the train, for the purpose of taking his proper position at the brakes thereon, and that, as he was in the act of stepping from the caboose onto the car next ahead, a violent shock was imparted to the caboose, and he was thereby thrown down between the caboose and the car next ahead, and in his fall his foot was caught between the fender and brake staff on the caboose, or on some part of the caboose where it was held, and he was dragged a great distance beneath the caboose, with his head and shoulders resting upon the ties and roadbed. That the shock so imparted to the said caboose, and which threw him down, as aforesaid, was caused by the parting of the train, to wit, between the second and third cars from the caboose, and the striking of the rear section upon the forward one; and he alleges that the said train was caused to part, and the rear section to strike upon the forward one, by the failure of defendant to use ordinary care to provide said two cars, on the ends between which the separation took place, with reasonably safe coupling appliances, or to use such care to keep such appliances in reasonably safe condition, in this: that the link and pin, drawheads, drawhead stems, drawbars, follow plates, springs, drawhead, stem keys, and the drawhead stem-key fastenings thereof were worn, unsafe, and defective, and in consequence broke, or the drawhead stem keys were unprovided with fastenings for the purpose of holding them in position, and in consequence came out. That plaintiff was ignorant of the said defects, and had not equal means with defendant of knowing of the same, and defendant knew, or by the use of ordinary care ought to have known, of the same, and plaintiff was ignorant of the said separation in the train, and he says his falling between the said cars was without fault or neglect on his part." The defendant, after pleading general and special demurrers and general denial, stated in its answer that the accident was not caused by negligence on the part of defendant, but was the result of inevitable and unavoidable accident, and that if there was a break in any part of the coupling apparatus of the cars, as alleged by the plaintiff, it did not occur from any defect which, by the exercise of ordinary diligence, could have been discovered; that it was the duty of the plaintiff to inspect and examine the coupling appliances, and, if any defects existed which could have been discovered by inspection, it was the plaintiff's duty to have so discovered them, which duty he failed to perform; and also, in effect, pleaded that the plaintiff was guilty of contributory negligence in going forward upon the top of the caboose, because, if the train was separated as alleged, he could have discovered that fact by the exercise of ordinary diligence, which he failed to exercise. The grounds of negligence relied upon by appellee in the trial of the case, and which were submitted to the jury by the charge of the court, were that the fastening in the key inserted in the eye of the stem of the drawhead in the forward end of the second car from the caboose came out; or, by the fastening becoming worn, unsafe, and defective, the key came out, and thereby caused the drawhead to pull out, and the cars to separate, and, as the result of such separation, the rear end collided with the front end of the train, and...