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

• Decision Date: 15 January 1898
• Citation: 45 S.W. 406
• Parties: MISSOURI, K. & T. RY. CO. v. EDLING.<SMALL><SUP>1</SUP></SMALL>
• Court: Texas Court of Appeals

45 S.W. 406

MISSOURI, K. & T. RY. CO. v. EDLING.¹

Court of Civil Appeals of Texas.

January 15, 1898.

Appeal from district court, Ellis county; J. E. Dillard, Judge.

Action by J. T. Edling against the Missouri, Kansas & Texas Railway Company. Judgment was rendered for plaintiff, and defendant appeals. Affirmed.

T. S. Miller and G. C. Groce, for appellant. S. P. Skinner, F. L. Hawkins, and A. L. Love, for appellee.

BOOKHOUT, J.

The statement of the case contained in appellant's brief is substantially correct, and is adopted: This suit was instituted by appellee in the district court of Ellis county, Tex., on May 8, 1895, to recover damages for alleged injuries charged to have been suffered in a collision of a train on appellant's road with one on the road of the Ft. Worth & New Orleans Railway Company at an intersection of the two roads, near Waxahachie, Tex., on December 25, 1894. Appellee, a passenger on the Ft. Worth & New Orleans Railway Company's train, alleged the collision; that it was the result of negligence on the part of appellant's employés in failing to stop before reaching said intersection, and injuries to himself, consisting of a severe blow on the head, inflicting a gash, and producing great pain and loss of blood, a painful wound on the left side and body, which cut the skin slightly, fractured two ribs, and caused internal injuries to the lungs, chest, and heart, of a serious and permanent character, resulting in inability to perform labor, and great mental and physical pain, etc., the injuries being alleged to be permanent. Appellant answered by a general denial, and by a special plea,—that if its train failed to stop before reaching this intersection, as alleged, it was not from negligence on its part, or of its employés; that its train was in charge of careful and prudent operatives, and was equipped with the latest and most-approved appliances for stopping trains, which worked perfectly up to the time of the collision; and that, if it then failed to stop, it was because its said appliances were wrongfully tampered with and disarranged by trespassers and wrongdoers, without the knowledge or consent of appellant or its agents and employés, and under circumstances rendering the discovery of such tampering impossible in time to have avoided the collision; and that, if this was not true, then the failure to stop was the result of defects in its said appliances, not discoverable by the most careful examination, and which inventive genius had as yet been unable to overcome in the best, safest, and most approved appliances for stopping trains; and that its employés did, in fact, use all the care, prudence, and caution possible under the circumstances to avoid and prevent such collision, wherefore it was claimed that the same, in so far as appellant was concerned, was an unavoidable accident. A trial of the cause resulted in a verdict and judgment in favor of appellee for $3,500, and, appellant's motion for new trial being overruled, this appeal is prosecuted.

Our conclusions of fact are: That on December 25, 1894, J. T. Edling was a passenger on the Ft. Worth & New Orleans Railway Company's train going from Houston, Tex., to Omaha, in the state of Nebraska; that the tracks of the Missouri, Kansas & Texas Railway Company and the Ft. Worth & New Orleans Railway Company cross each other about one mile west of Waxahachie, in Ellis county; that while appellee, J. T. Edling, was a passenger on a train of the said Ft. Worth & New Orleans Railway Company, going west at or near said crossing, the servants and operatives of the appellant's train negligently ran a passenger engine and train of cars attached thereto into the train of the said Ft. Worth & New Orleans Railway Company, upon which J. T. Edling was a passenger, without any fault on the part of said Edling, thereby causing a wreck and greatly injuring the said Edling. Appellee's injuries are permanent, and he has sustained damages thereby in the amount found by the jury.

Appellant does not present its first and second assignments of error, but presents its third assignment, which reads follows: "The court erred in failing to submit the special defense pleaded, — that the collision complained of, if not the result of a wrongful tampering with defendant's appliances for stopping its trains, which were alleged to be the latest and most approved in use for the purpose, was the result of some defect in said appliances not discoverable by the most careful examination, and which inventive genius has been unable to overcome in the most approved appliances for stopping trains; and that, in fact, defendant's employés used all the care, caution, and prudence possible under the circumstances in which they were placed to avoid the collision, which was claimed to have been an unavoidable accident; and the court further erred in refusing the third special instruction requested on behalf of the defendant, intended to present this defense to the jury." The contention of appellant is that its defense embraced two theories,— one, that the brakes had been tampered with by parties not connected with the railroad company; and the other, that the train was equipped with the most approved appliances for controlling it, and that the brakes had always worked perfectly up to the time of the accident, and that their failure to work at the time of the accident was due to latent defects, which could not have been ascertained by the use of ordinary care. The appellant admits that the charge fairly submitted to the jury the law governing its first contention, and, further, that the charge laid down the true rule as to the degree of care due from appellant to appellee at the time of the collision. The evidence was that the train could be controlled and stopped by the engineer from the engine if the brakes were in proper order, or the train could be stopped by the engineer giving the signal to apply the brakes, and that, had the signal been given to apply the brakes, the train could have been stopped in a few seconds....