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

• Citation: 39 S.W. 130
• Parties: MISSOURI, K. & T. RY. CO. OF TEXAS v. HOLMAN.<SMALL><SUP>1</SUP></SMALL>
• Decision Date: 14 November 1896
• Court: Court of Appeals of Texas

39 S.W. 130

MISSOURI, K. & T. RY. CO. OF TEXAS v. HOLMAN.¹

Court of Civil Appeals of Texas.

November 14, 1896.

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

Action by J. S. Holman against the Missouri, Kansas & Texas Railway Company of Texas to recover for personal injuries. Judgment for plaintiff, and defendant appeals. Affirmed.

G. C. Groce, for appellant. M. B. Templeton, for appellee.

FINLEY, J.

Appellee, J. S. Holman, instituted this suit in the district court of Ellis county, Tex., March 28, 1895, against appellant, to recover damages laid at $10,000 for alleged personal injuries, charging in his petition, in substance, that on November 19, 1894, he was an employé of a cotton compress company at Waxahachie, Tex., his duty being in part to check bales of cotton, after being compressed, into cars of appellant, placed on a switch at said compress, which it maintained and operated; that on the date last named there were several cars standing on said switch, to be loaded; and that while he was in one of said cars, checking cotton, appellant, by its agents and employés, without any warning or notice whatever, negligently and in a violent manner propelled one of its engines against said cars, causing them to run violently one against the other, knocking the car in which he was in such a way as to cause him and the cotton bales therein to fall, and one of said bales to fall on him, breaking his leg, and spraining his foot and ankle. Serious and permanent injuries were alleged, as also want of proper care on the part of appellant's servants and employés, and that the cotton in said cars had been placed therein in a careful manner, and that he was in said car in the usual discharge of his duties, as appellant's employés well knew, or should have known; that, as a result of the injuries complained of, he was confined to his bed for over seven weeks, suffered great mental anguish and pain, was at an expense of $50 for medical attention and medicine, and was compelled to be nursed and cared for by his wife at a further reasonable cost of $250, etc. Appellant answered by general exception, a special exception to the amount claimed for the services of the wife, by a general denial, and by a special plea, in substance, that if appellee was injured in one of its cars it was the result of his own negligence and want of proper care in going into a car partially loaded with compressed cotton, when he knew, or from the circumstances should have known, that such car was about to be moved, and in climbing over the bales of cotton in said car, thereby causing it to fall, and in failing to take and keep a safe position in said car, as he might have done, etc. Appellant's exceptions, general and special, were overruled, to which exceptions were reserved and on a trial judgment for $600 was rendered in favor of appellee, from which judgment this appeal is prosecuted.

The evidence adduced upon the trial authorizes the following conclusions of fact, which were at issue upon the trial, and upon which there was to some extent conflict in the evidence: (1) Appellee, Holman, was an employé of the compress company. At the direction of the superintendent of the compress company, he went into a car, loaded with compressed cotton, which had been placed upon the switch track for the purpose of being so loaded, to count the bales of cotton which had been placed in the car. (2) This car was under the direction and control of the local railway agent, Patterson, who heard the superintendent of the compress company direct Holman to go into the car and count the bales of cotton, and the agent, Patterson, saw Holman go into the car, and offered no objection to his doing so. (3) An engine was standing on the switch track at the time Holman went into the car, which had been run out there with the view of moving the loaded car. After Holman went into the car to count the bales of cotton, Patterson, the agent, directed the employés in charge of the engine to couple onto the car into which Holman had gone, and bring it out upon the main track. (4) While Holman was performing his duty of counting the bales of cotton in the car, the employés of the railway company in charge of the engine violently and negligently effected a coupling with the car into which Holman had gone, striking and moving it with such force as to cause the bales of cotton to fall in the car, and seriously injure Holman. (5) Holman was guilty of no negligence himself, and received his injuries through the negligence of the employés of the railway company. (6) The injuries sustained by Holman were sufficient to justify the amount of the...