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

• Decision Date: 01 June 1917
• Docket Number: (No. 1809.)
• Citation: 195 S.W. 1177
• Parties: MISSOURI, K. & T. RY. CO. OF TEXAS v. WATSON.
• Court: Texas Court of Appeals

195 S.W. 1177

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

(No. 1809.)

Court of Civil Appeals of Texas. Texarkana.

June 1, 1917.

Rehearing Denied June 21, 1917.

Appeal from District Court, Hunt County; A. P. Dohoney, Judge.

Suit by J. W. Watson against the Missouri, Kansas & Texas Railway Company of Texas. From a judgment for plaintiff, defendant appeals. Affirmed.

On the 8th day of April, 1915, the appellee, J. W. Watson, while in the performance of his duties as a section hand in appellant's service at Floyd, Tex., sustained bodily injuries for which he claims damages in this suit. At the time of the injury, appellee was engaged in helping to stack on the right of way creosoted pine ties which had been unloaded that morning from cars and thrown beside the track. The section men were working on this occasion two men to a tie, but appellee claims that on previous occasions the same character of work was done with three or four men to the tie. The ties were carried beyond a side track and stacked by the toolhouse until they should be needed in the track at some future time, at which time they would be loaded on a push car and transported to the place where they would be used in the repair of the track. According to appellee's testimony, he, under the direction of the assistant foreman of the section crew, took up one end of a tie, and the assistant foreman took up the other end, for the purpose of carrying same to the place where it was to be stacked. He testified that he had had very little experience in stacking ties; that he did not know the weight of the tie he was directed to help stack; that he expected the tie to weigh from 80 to 100 pounds, which is the ordinary weight of pine ties, but that it was in fact a creosoted green pine tie and much heavier than he had anticipated; and that the assistant foreman, after raising his end of the tie and before appellee had entirely straightened up and without notice or warning to him, suddenly let his end of the tie drop, which jerked the appellee down, seriously and permanently injuring him. There is evidence showing that the tie was afterwards weighed, and that its weight was found to be 240 pounds. It is alleged in the petition that appellee was injured as the proximate result of the negligence of the foreman in failing to designate a sufficient number of men to handle the tie in question with safety, or that his injuries were caused by the negligence of the assistant foreman in dropping his end of the tie without notice or warning. The defendant answered by denial and pleaded contributory negligence and assumed risk, and specially pleaded that the work being done by the plaintiff was connected with interstate commerce, and that the liability of the defendant should be determined by the act of Congress applying to the situation; and by plea that the injury plaintiff was suffering from was solely due to disease existing prior to the time of the alleged injury. There was a trial to a jury, and verdict for the plaintiff. There is involved in the verdict, which is supported by the evidence, the finding of fact that Charles Nolan, an employé of appellant, was guilty of negligence in turning loose the tie, as alleged, proximately causing permanent injury to the appellee, and that the injury to appellee is not, in point...