Missouri Pac. Ry. Co. v. M'Elyea

• Decision Date: 12 October 1888
• Citation: 9 S.W. 313
• Parties: MISSOURI PAC. RY. CO. <I>v.</I> McELYEA.
• Court: Texas Supreme Court

9 S.W. 313

MISSOURI PAC. RY. CO.

v. McELYEA.

Supreme Court of Texas.

October 12, 1888.

Appeal from district court, Anderson county; F. A. WILLIAMS, Judge.

A. J. McElyea sued the Missouri Pacific Railway Company for personal injuries. Judgment for plaintiff, and defendant appeals.

John Young Gooch, for appellant. W. Q. Reeves, for appellee.

STAYTON, C. J.

The appellee was a "section boss" in the employment of the appellant company, and, with the men under his control, was being transported on an engine and tender from the section-house to a place on the road at which a wreck had occurred, when the engine and tender were derailed, and the appellee thereby seriously injured. The evidence tends to show that the derailment was caused by a brake-shoe falling from the brake-beam just in advance of a car-wheel, which was thereby forced from the track. The evidence further tends to show that, had the brake-shoe been properly fastened, it could not have fallen, and that its fastening is so made as to render any defect therein easily observed. It is claimed that the engine and tender were inspected but a short time before the accident, and that they were both then in good order; but there is evidence showing that on that inspection machinery constantly in sight of the engineer who made the inspection was not seen by him to be out of order, though a material part of it was missing. There was other evidence introduced tending to show that the engine was otherwise out of order, and was considered dangerous, and that it had left the track on several occasions but a short time before. It is urged that the evidence was not sufficient to sustain the verdict. There was much evidence, consisting mainly of statements that the engine and tender were in good order, and that they were frequently inspected, but all this was for the consideration of the jury; and, in view of the direct proof of defects, such as caused the accident and of the patent character of the defect found, we cannot say that the conclusion of the jury is not well sustained by the evidence, involving, as it does, the declarations that the machinery was defective; that the accident resulted from the defect; and that the exercise of that care required of the appellant for the safety of its employes would have prevented the accident.

It is urged that the court erred in refusing to give a charge asked by the appellant. The charge requested was as follows: "The defendant was under obligation to the...