Missouri Pac. Ry. Co. v. Patton

• Decision Date: 24 January 1894
• Parties: MISSOURI PAC. RY. CO. v. PATTON.
• Court: Texas Court of Appeals

25 S.W. 339

MISSOURI PAC. RY. CO. v. PATTON.

Court of Civil Appeals of Texas.

January 24, 1894.

Appeal from district court, Clay county; George E. Miller, Judge.

Action by M. C. Patton against the Missouri Pacific Railway Company for injuries received while in defendant's employ. Judgment for plaintiff. Defendant appeals. Affirmed.

A. K. Swan, for appellant. R. D. Welborne, W. O. Davis, and J. L. Harris, for appellee.

Conclusions of Fact.

HEAD, J.

For several days preceding the 29th day of April, 1888, unusually heavy rains had occurred along appellant's line of railway, extending from Denison to Henrietta, Tex., which washed out the track in a number of places. Appellee was assistant road master of appellant, and on said day was sent out with a number of hands to repair its track. For this purpose he was furnished with a construction train, drawn by a locomotive upon which one W. S. Newman was the engineer. Newman had never been over this track where the accident occurred before, and appellant's general superintendent, who sent him out upon this trip, admits that for this reason, if he was in charge of the movements of the train, he was incompetent to discharge this duty, but testifies that Newman was not in charge of the train, but that it was in charge of appellee, who was riding upon the locomotive with the engineer, and directing his movements. Appellee, while admitting that he was on the engine with the engineer, says that this was his proper place in the discharge of his duties in inspecting the track, and that he had no notice of Newman's lack of knowledge, and had nothing to do with controlling his movements, except to notify him when to start after a defect had been repaired, and that Newman received all of his orders from a different department of the service. The evidence was therefore sufficient to sustain the verdict finding in favor of appellee upon this branch of the case, and was also sufficient to sustain the verdict in finding negligence on the part of appellant in the selection of Newman for the performance of this work. While engaged in repairing the track of appellant under the circumstances above detailed, the engine was run into a washout in the track at a culvert a few miles east of Henrietta, in Clay county, and appellee received injuries for which, upon the trial in the court below, he was given a verdict and judgment in the sum of $8,750, from which this appeal is prosecuted. The verdict is well sustained by the evidence, as to the amount thereof. Had the engineer been familiar with the track, as he should have been before being assigned to this work, the accident would not have happened.

Opinion.

The trial not having been had at the return term of the...