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

• Decision Date: 25 May 1898
• Citation: 46 S.W. 270
• Parties: MISSOURI, K. & T. RY. CO. OF TEXAS v. ROBERTS.
• Court: Texas Court of Appeals

46 S.W. 270

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

Court of Civil Appeals of Texas.

May 25, 1898.

Appeal from district court, Waller county; T. S. Reese, Judge.

Action by W. W. Roberts against the Missouri, Kansas & Texas Railway Company of Texas. Judgment for plaintiff. Defendant appeals. Reversed.

Baker, Botts, Baker & Lovett, for appellant. Ewing & Ring, for appellee.

FLY, J.

Appellee sued to recover damages for personal injuries alleged to have been caused through the negligence of appellant. It was alleged by appellee that he was in the employ of appellant as the engineer of a switch engine, and was on August 24, 1896, operating an engine in the switch yard of appellant in the city of Houston, Tex.; and, while operating said engine and backing same with a number of freight cars attached to the front of the engine, the latter went through a misplaced switch, and appellee, seeing that a collision was imminent, having endeavored and failed to stop the engine, leaped from it, in order to escape the danger, and crushed the bones of his foot and ankle. It was further alleged that appellee could have stopped his engine if there had not been defects in the reverse lever, the brakes gib, and other appliances; that, a short time before the accident, appellee had called the attention of appellant to the defects, and appellant had promised to repair the same, but had failed to do so. It was charged that the switch was misplaced through the negligence of an agent of appellant. It was answered that the agent who left open the switch was a fellow servant of appellee; that appellee was guilty of contributory negligence in not keeping a lookout on the engine, as it was his duty to do; that appellee was guilty of contributory negligence in running the engine at a greater rate of speed than six miles an hour, in violation of an ordinance of the city of Houston, and, if he had not been so running the engine at such unlawful rate of speed, he could have stopped his engine, and avoided the accident; and, also, that appellee ought not to recover, because he was running the engine with full knowledge of its defects.

Appellant asked the following charge: "You are charged that should you believe from the evidence that plaintiff was injured at the time and place substantially as alleged by him in his petition; and should you further believe that, immediately before the accident of which he complains occurred, he was running his engine within the corporate limits of the city of Houston at a rate of speed in excess of six miles...