Owens v. Missouri Pac. Ry. Co.

• Decision Date: 01 January 1889
• Citation: 38 F. 571
• Parties: OWENS v. MISSOURI PAC. RY. CO.
• Court: U.S. District Court — Eastern District of Texas

38 F. 571

OWENS v. MISSOURI PAC. RY. CO.

United States Circuit Court, E.D. Texas.

March Term, 1889

Syllabus by the Court

Plaintiff was run over or against by defendant's locomotive hauling a freight train, and had his arm at elbow broken and fractured. Plaintiff says he was endeavoring to step off the track bed when he was struck by the engine. Defendant contends that he was drunk, lying with his head on the rail and his arm near or on the rail, and his limbs extending outwardly from the road-bed. The judge allowed, against defendant's object, the jury to go from the court-room to make an examination of a railway engine. Held, there was no error to vitiate a verdict for plaintiff. On the evidence the findings of the jury seem to be correct.

Brady &amp Ring, for plaintiff.

Willie Mott & Ballenger, for defendant.

BOARMAN J.

The plaintiff sues for damages because of personal injury inflicted on him on being run over or against by defendant's locomotive hauling a freight train. The jury allowed him $4,500. The matter is now on a motion for a new trial. The evidence not disputed shows that Owens, at the time he was injured, worked in car-shops at Houston, and earned from $55 to $75 per month wages; that he is about 33 years of age; that his right arm and hand are permanently injured and almost useless to him for any work, skillful or otherwise; that he now earns or can earn much less than formerly; that he lived in the suburbs of Houston, on Car street; that defendant's railway track runs along this street, north and south; that the street has no sidewalk or improvements for the use of footmen or vehicles; that the railway track, being raised above the street level, is used without objection, commonly by people living in said street as a footway; that Owens, having been 'down town' in Houston until 2 or 3 o'clock, a.m., rode with a companion in a hack homeward to a point at or near the place on defendant's railway track about-- yards south of the point where it is crossed by the New Orleans Railway track that, reaching said point, Owens got out of the hack, and walked on northward up defendant's track; that when he had gone about 250 or 300 yards up the track he was run over or against by the defendant's locomotive hauling a freight train, and injured as aforesaid; that a little while before he was struck he heard a trail whistle at the said railway crossing, which he took to be a whistle on a train running on the New Orleans Railway. The disputed matters relate to the speed the train was running when Owens was struck; to the distance the train had run after crossing the New Orleans Railway track; to whether or not the engine bell was ringing as the train was running on Car street, as the company's rules and the city ordinance require to be done; and upon the very important question as to whether Owens was in fact walking along the railway track, or lying down with his head and arm on or near to the rail, with him limbs extending outwardly from the rail. On this last point, defendant's witnesses, the engineer and fireman, then on the locomotive, say that when they saw Owens first he was lying down in the way just mentioned; that they saw him for the first time when the engine was 20 or 30 feet from him, and they could do nothing to save him. The fireman, sitting on the left-hand side of the cab, said he thought the object which proved to be Owens was a pile of coal ashes lying on or near the track. They both say the engine bell was ringing, as the rules and ordinances require; that the train was running about four or five miles an hour; that the train, before going over the New Orleans Railway crossing,...