Sabine & E. T. Ry. Co. v. Ewing

• Decision Date: 12 April 1894
• Citation: 26 S.W. 638
• Parties: SABINE & E. T. RY. CO. v. EWING.
• Court: Texas Court of Appeals

26 S.W. 638

SABINE & E. T. RY. CO. v. EWING.

Court of Civil Appeals of Texas.

April 12, 1894.

Appeal from district court, Jefferson county; Stephen P. West, Judge.

Action by R. W. Ewing against the Sabine & East Texas Railway Company. From a judgment for plaintiff, defendant appeals. Affirmed.

O'Brien & O'Brien and Perryman, Gillaspie & Bullitt, for appellant. W. L. Douglass, J. F. Lanier, and Greer & Greer, for appellee.

WILLIAMS, J.

The judgment from which this appeal is taken was recovered in the court below, by appellee against appellant, for $20,000, for personal injuries inflicted upon the former through the negligence of the latter. Appellee was a fireman on one of appellant's engines, and, while he was engaged in performing his duties, the coupling between the engine and tender broke, causing him to fall between them, where he received the injuries for which he recovered. The engine and tender were coupled together by an iron bar, of which one end was fastened to the engine, and the other was bolted by an iron pin to a piece of casting attached to the tender. There were upon the casting two parts, called the "flange" and the "lug," between which the drawbar entered, and through which, as well as through the bar, passed the bolt which coupled them together. The lug was pulled off, and the holes in the flange broke out, releasing the pin or bolt entirely, and allowing the engine and tender to separate. The pieces which were broken from the casting were never found. It was shown by a witness for plaintiff that he examined the parts remaining attached to the tender after the accident; that a part of the lug still remained upon the casting, and upon it was the evidence of an old crack where it had parted. The witness stated that he could tell from the appearance of the iron that there had been an old crack in it. The pieces of the casting which were taken from the tender after the accident were shown to this witness at the trial, and he stated that they were not in the same condition as when he examined them at the place where plaintiff was hurt, and that the piece of the lug which remained upon the casting when he examined it was gone, and that the iron, as shown at the trial, was broken in pieces, while it was solid when he had examined it. It was shown by witnesses for defendant that the iron was taken from the tender, when it arrived at Beaumont, in the condition in which it was exhibited at the trial. Expert witnesses gave it as their opinion that the breaks upon it all occurred at the same time, and that no part of the broken surface indicated that a break at that point had occurred before the other parts were broken. As tending to suggest the manner in which the casting may have been broken after his witness saw it, plaintiff showed that, after the accident, the drawbar of the engine was chained to the end of the tender, and that, as thus fastened, they were carried to Beaumont, a distance of about 18 or 20 miles, and that the roadbed was in bad condition; the deduction sought to be drawn being that the drawbar, coming in contact with the casting, had broken off the part of the lug which the witness had stated remained after the accident. The defendant showed that it was the duty of the engineer alone to inspect the engine, which he did at each end of the route, before starting on a trip; that, on the day when appellee was hurt, he made the usual inspection before going out with the engine, and discovered no defect in this casting or elsewhere. It appears, however, that the "usual inspection" did not include an examination of such parts of the machinery as this casting, which could only be examined by getting under the engine, but consisted merely of looking "around or over" the engine. This casting had been on the tender for a month, and, as it was not the duty...