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

• Decision Date: 09 March 1901
• Citation: 61 S.W. 978
• Parties: MISSOURI, K. & T. RY. CO. OF TEXAS v. MILLER.<SMALL><SUP>1</SUP></SMALL>
• Court: Texas Court of Appeals

61 S.W. 978

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

Court of Civil Appeals of Texas.

March 9, 1901.

Appeal from district court, Denton county; D. E. Barrett, Judge.

Action by George F. Miller against the Missouri, Kansas & Texas Railway Company of Texas. From a judgment for plaintiff, defendant appeals. Affirmed.

T. S. Miller and Head & Dillord, for appellant. Greenlee & Bradley, for appellee.

HUNTER, J.

This suit was filed January 30, 1900, to recover of appellant for personal injuries received by appellee at Whitesboro, Tex., on the 18th day of December, 1899, while in the employ of appellant as freight-train conductor, by reason of the defective condition of one of its cars, and the failure to properly inspect it, whereby the top round of the ladder on the side of said car gave way for want of a nut on the bolt which held it as appellee was climbing on top of said car at night in the performance of his duty, whereby he fell to the ground with his back across the rail of a side track, causing him serious and permanent injuries, as it is alleged, to the extent that he is unable to work, his health destroyed, partial paralysis of his lower limbs from the hips down, and constant suffering from mental anguish and physical pain. The appellant answered by general denial and special pleas of contributory negligence, and that the defect, if any, was patent and obvious, and by the use of ordinary care could have been discovered by appellee, and also that the defect, if any, was latent, and could not have been discovered by appellant by the use of ordinary care, and that appellee assumed the risk of injury from such cause. The jury found a verdict in favor of appellee for $10,000, and from the judgment rendered thereon this appeal is taken.

The evidence tended to prove, and was sufficient to establish, the material allegations in appellee's petition. It was dark when the accident occurred, and, though the evidence tends to establish that the nut from the bolt which held the round of the ladder had slipped off by reason of the threads of the same being worn or battered off, the appellee did not know of the defect, and it was too dark to discover it at the time he was injured. The car had been inspected at Galveston on the 14th of the month, at Houston on the 13th and 16th, at Smithville on the 17th, and the defect was not discovered. The conductor, Graham, and brakemen, Bolin and McDonald, brought the car in their train from Smithville to Hillsboro on the 17th and 18th, and failed to discover the defect. A proper inspection of the ladder at Hillsboro on the 18th, or at Whitesboro, as we infer from the evidence, would have disclosed the defect, and avoided the injury. We therefore conclude that the injury was occasioned by the negligence of the appellant in failing to have the car properly inspected and repaired.

At the time of his injury the appellee was unacquainted with sickness and suffering, weighed 204 pounds, and was...