San Antonio & A. P. Ry. Co. v. Gonzales

• Decision Date: 28 January 1903
• Citation: 72 S.W. 213
• Parties: SAN ANTONIO & A. P. RY. CO. v. GONZALES.<SMALL><SUP>*</SUP></SMALL>
• Court: Texas Court of Appeals

72 S.W. 213

SAN ANTONIO & A. P. RY. CO. v. GONZALES.^*

Court of Civil Appeals of Texas.

January 28, 1903.

Appeal from district court, Gonzales county; M. Kennon, Judge.

Action by Bernardino Gonzales against the San Antonio & Aransas Pass Railway Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Harwood & Walsh, for appellant. S. H. Hopkins and J. W. Rainbolt, for appellee.

NEILL, J.

This suit was brought by the appellee against appellant to recover damages for personal injuries alleged to have been inflicted upon him by the negligence of the railway company. The appellant answered by general and special exceptions, a general denial, and a special plea of contributory negligence. The trial of the case resulted in a judgment in favor of the appellee for $2,000, from which appellant has appealed.

Conclusions of Fact.

On November 2, 1900, the appellee was one of a gang of penitentiary convicts hired by the state of Texas to the appellant to work on its railroad. The convicts, during the term of their employment, were in the custody and under the control of one E. B. Stedman, a sergeant in the employ of the state of Texas, who was also employed by appellant as an assistant section foreman in working the gang of convicts. While appellant's section foreman directed and superintended the work done by them, in doing the work the convicts were under the immediate control, supervision, direction, and order of the sergeant, whose orders they were compelled to obey, any disobedience of them subjecting the convicts to punishment by flogging. During the time they were hired to the appellant, the rations were furnished the convicts by the state. On the day stated, the gang of convicts having ceased work for dinner at Slayden, the appellee and another convict were ordered by the sergeant to throw a sack of peas, furnished as rations, upon a flat car of a passing train, so that it could be carried to the commissary car in which the rations of the gang were stored, and, while in the act of obeying the order, appellee was struck on the head by a brake rod, which appellant had negligently permitted to become so bent as to project over the platform where appellee was at the time endeavoring to obey the order of the sergeant, and was thereby knocked from the platform under the wheels of the car, which ran over and mashed and mangled his foot and ankle so as to render their amputation necessary. The appellee was neither guilty of nor chargeable with any negligence proximately contributing to his injury, but the same was proximately caused by the negligence of appellant in running the train on which there was a car with a brake rod projecting over the platform where appellee was doing the work.

Conclusions of Law.

As the assignments of error are directed to the refusal of the court to give a number of special charges asked by appellant, and complain of the charge given, we will, in order to discuss them intelligently, insert the charge of the court, as well as such special instructions as were given at appellant's instance. Before doing so, we will remark that we believe that, when they are read and considered in reference to the evidence, they will be found to constitute a complete refutation of appellant's assignments of error.

After properly defining negligence and contributory negligence, the main charge of the court proceeds as follows: "(3) If you find from the evidence that on or about the 2d day of November, 1900, the plaintiff was a convict in charge of a sergeant at Slayden; that he was on the platform of the defendant's station at Slayden, and that he was rightfully upon said platform and rightfully at the place on said platform that he was at the time he was injured; and that, being at said place, he attempted to put a sack of peas upon a flat car attached to one of defendant's engines, and then in motion; and if you further find from the evidence that while attempting to put said sack of peas upon the car, a side-brake rod upon one of the flat cars of defendant, also attached to said engine and then in motion, was bent so as to project over the platform upon which plaintiff then stood, and that, by reason of its so projecting, said brake rod struck the plaintiff and knocked him from the platform to the ground; that thereby plaintiff's foot was crushed by defendant's train in such a manner as to necessitate the amputation of the limb above the ankle and below the knee; and if you further find from the evidence that the condition of the brake rod was known to the agents and servants of defendant in charge of the convict train, or if, in the exercise of ordinary care, its condition ought to have been known to said servants and agents of defendant, previous to the accident and in time to remedy the defect, and was known to the plaintiff; and if you further find from the evidence that as to the plaintiff it was negligence on the part of the defendant to operate the car upon which the bent brake was as it was then operated, and that the condition of the brake was the result of negligence on the part of the defendant, and that such negligence was the proximate cause of the injury to the plaintiff —then the plaintiff would be entitled to recover, unless you find that he was guilty of such contributory negligence on his part as to preclude his recovery, in regard to which you will be further charged." In special charge No. 5, given at appellant's request, negligence and contributory negligence are again defined. After these definitions such charge is as follows: "If, therefore, you believe from the evidence in this case that the plaintiff, Bernardino Gonzales, while attempting to load a sack of peas on a loaded flat car, and was knocked down and injured by being struck on the side of the head by a side brake on said flat car; and if you further so believe that the said Gonzales was guilty of negligence as negligence is hereinbefore explained, in attempting to load said peas on the said flat car loaded with dirt at the time and place and under the circumstances he was there; or if you believe from the evidence that the said Gonzales was attempting to load said sack of peas on...