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

• Decision Date: 23 February 1910
• Citation: 125 S.W. 309
• Parties: MISSOURI, K. & T. RY. CO. OF TEXAS v. JONES.
• Court: Texas Supreme Court

Page 309

125 S.W. 309

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

Supreme Court of Texas.

February 23, 1910.

Error from Court of Civil Appeals of Third Supreme Judicial District.

Action by J. P. Jones against the Missouri, Kansas & Texas Railway Company of Texas. Judgment for plaintiff was affirmed by the Court of Civil Appeals (117 S. W. 1000), and defendant brings error. Reversed and judgment rendered.

Coke, Miller & Coke and Tyler & Tyler, for plaintiff in error. A. L. Curtis and Winbourne Pearce, for defendant in error.

WILLIAMS, J.

The principal question in this case is whether or not the evidence relied on by defendant in error (plaintiff) is sufficient to show negligence on the part of the plaintiff in error (defendant). Plaintiff's counsel rely mainly on the principle res ipsa loquitur, as it has been stated in many decisions in this state and elsewhere.

The injury for which plaintiff sues was received in this way: As a switchman in the service of defendant in its yards at Temple, he rode on the footboard of a slowly moving engine until it reached a point at which it was his duty to get off for the purpose of throwing a switch, and, in doing so, he stepped upon an iron bolt eight or ten inches long and an inch thick, which rolled under his foot in such manner as to throw him down across one of the rails, and caused the injuries for which he recovered. The bolt was lying upon the track at a place where switching was constantly done, and it is virtually admitted in the evidence that the presence of such an object would render the track dangerous for such uses as switchmen are expected to make of it. The only evidence of its presence is the testimony of plaintiff which goes only to the fact that it was there when he stepped on it. It is shown that the bolt was such as is used by defendant and other companies in holding in place the draft timbers of cars. Such bolts were often taken out of cars by the repairers in the yard at Temple. This was usually done upon the repair track, but the chief repairer, without any recollection of such a fact, admitted the possibility of his having at some time taken out one on the track in question. He stated, however, that he had never left a bolt upon a track, but always removed and put them in the scrap pile where old irons were kept. It was shown to have been the duty of the chief repairer and his assistant to pick up pieces of iron when seen anywhere about the yards, and put them in the scrap pile to be put to other uses; but, while the evidence justifies the inference that such things were often found, there is none that at any time before that in question one was ever seen on a track or at any other place where it would endanger employés. Nor is there any evidence that any car was worked upon on the track in question on or before the day of the accident, unless the fact that the bolt was there be such. The repairers stated that they had no knowledge of such a fact. It was the especial duty of the foreman of the section, including these yards, and of the track walker employed therein, to look after the condition of the tracks, and to keep them free of such obstructions. Each of them testified that he started upon his first round of inspection at 7 o'clock each morning, and did so on the morning in question, passing over the point where the bolt was afterwards found less than an hour before plaintiff was hurt; that it was his duty to keep a lookout for such objects; and that, if one had been there, he would have seen and removed it, as it was his duty to do. The chief car repairer and his...