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

• Decision Date: 22 December 1898
• Citation: 48 S.W. 568
• Court: Texas Supreme Court
• Parties: MISSOURI, K. & T. RY. CO. v. JOHNSON.

48 S.W. 568

MISSOURI, K. & T. RY. CO. v. JOHNSON.

Supreme Court of Texas.

December 22, 1898.

Error to court of civil appeals of Fifth supreme judicial district.

Action by Harry Johnson against the Missouri, Kansas & Texas Railway Company and another. From a judgment of the court of civil appeals (49 S. W. 265) affirming a judgment for plaintiff, the above-named defendant brings error. Affirmed.

T. S. Miller and Head, Dillard & Muse, for plaintiff in error. Wolfe & Hare and C. B. Randell, for defendant in error.

GAINES, C. J.

The defendant in error brought this suit against the plaintiff in error and the Missouri, Kansas & Texas Railway Company of Texas to recover damages for personal injuries claimed to have resulted from the negligence of the servants of the defendants. There was a judgment in favor of the defendant in error against the plaintiff in error, but not against its co-defendant. The plaintiff in error appealed to the court of civil appeals, where the judgment was affirmed.

The substance of the pleadings is thus stated in the opinion of the court of civil appeals: "Omitting formal allegations, the amended petition stated that the point where the collision occurred was on a very steep grade, over which it was impossible to draw heavy freight trains, and that, for the purpose of transporting cars over said hill, the defendant had established a switch, called `Warner,' between Red River and Denison, where cars were set out of south-bound freight trains, if the train was too heavy to be pulled over the hill, or, in the event such cars were not so set out of such character of trains, then defendant would have an engine, called a `helper,' to assist in pulling over the hill. It was also alleged that if Warner switch was full of cars, and no helper was to be there, then that the conductors of south-bound trains would be notified of such fact, and the cars would be set out at Colbert, a station further north on the line of appellant. The allegations of negligence are quite voluminous, as set forth in the petition, but they are, substantially, that the freight train was too heavy to be pulled over Denison hill, that not a number of cars sufficient to lighten the train were set out at Warner, that there was no helper to assist the train over the hill, and that the empoyés of defendant in charge of the train were not notified to set out cars at Colbert. Then it was alleged that the employés in charge of the freight train negligently failed to flag the passenger train following it. On February 15, 1894, the defendant filed its first amended original answer, which consisted of a general denial, and special plea to the effect that due and proper signals were given; that the injury to plaintiff was caused by the negligence of his fellow servants and by his own negligence. It is further alleged in said answer that plaintiff was furnished with a copy of rules and regulations for running trains, and that it was his duty to familiarize himself therewith; that he failed to do this, and failed to obey such rules, and that thereby his injuries resulted. Defendant also, in such answer, sought to recover of plaintiff damages for the destruction of property caused by said collision."

In passing upon the application for the writ of error, we were of opinion that no error was pointed out by the petition, except by the seventh assignment. We are still of the same opinion as to all other specifications of error, and shall, therefore, confine our discussion of the case to the ground of error specifically mentioned.

The defendant in error (the plaintiff below) was the engineer on a passenger train of the railroad company, and the accident occurred by reason of a collision of that train with one of the regular freight trains of the company. The latter had reached a part of the road where there was a heavy up grade, and, being unable to surmount it at an ordinary rate of speed, was making very slow progress, if it had not come to a stop. While in this condition the passenger train overtook and ran into it. It was about 4 o'clock in the morning. There was evidence tending to show that there were signal lights upon the rear of the front train, and that a brakeman was sent back with a lantern to signal the passenger train, and also that the conductor dismounted with a lantern for the same purpose. There was also evidence tending to show that the passenger train ran by without paying any attention to the signals. On the other hand, the plaintiff himself testified that immediately before the accident an injector upon his engine was out of order, and that he was engaged...