Pollock v. Houston & T. C. R. Co.
| Decision Date | 22 December 1909 |
| Citation | 123 S.W. 408 |
| Court | Texas Supreme Court |
| Parties | POLLOCK v. HOUSTON & T. C. R. CO. |
Action by Henry Pollock against the Houston & Texas Central Railroad Company. From a judgment for plaintiff, defendant appealed to the Court of Civil Appeals, where the judgment was reversed (115 S. W. 843), and plaintiff brings error. Judgment of the trial court reversed, and the cause remanded.
Wolfe, Hare & Maxey, for plaintiff in error. Baker, Botts, Parker & Gorwood and Head, Dillard & Head, for defendant in error.
Henry Pollock was a member of a section gang who were employed in repairing the roadbed of the Houston & Texas Central Railroad Company under the management of Kidd as foreman. On the day of the accident the gang were engaged in raising a dump upon the railroad track. A train was seen approaching from the south, and Kidd told the men to keep working, and he would call them off before the train reached them and in time for them to assume a safe position. When the train approached within 45 to 75 yards of where the men were at work, they were called off, and Pollock left the track, and had got 4 or 5 feet from it, when a piece of coal, or cinder, or some such hard substance struck him in the eye. He did not get further away because he says he did not have time. One witness testified that he thought the train was running 35 to 40 miles an hour. Other witnesses said it was running "pretty fast." The substance that struck the plaintiff in the eye seemed hot, and some days after the accident was taken out by a physician; but the eye was ulcerated, and the sight lost. The evidence for plaintiff tended to show that it was customary when the section gang were at work on the track and a train approached for the foreman to give orders for them to keep at work, and he would notify them when to clear the track.
We were inclined to think that the occurrence was so unusual that it could not be said that the foreman ought to have anticipated it, and that therefore he was not negligent. But, upon examining the testimony, we find that Kidd, the foreman, testified: ...
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