Smith v. Texas & P. Ry. Co.

• Decision Date: 30 June 1900
• Citation: 58 S.W. 151
• Parties: SMITH v. TEXAS & P. RY. CO.
• Court: Texas Court of Appeals

58 S.W. 151

SMITH v. TEXAS & P. RY. CO.

Court of Civil Appeals of Texas.

June 30, 1900.

Appeal from district court, Ector county; W. R. Smith, Judge.

Action by Berry Smith against the Texas & Pacific Railway Company. Judgment for defendant, and plaintiff appeals. Affirmed.

W. W. Martin, for appellant. Bidwell & Stennis, for appellee.

STEPHENS, J.

Appellant was severely injured, September 6, 1898, while engaged in the service of appellee, and brought this suit to recover damages. Upon a trial before a jury, the court instructed a verdict against him. He alleged as ground of recovery, and the evidence tended to prove, "that on said 6th day of September, 1898, after appellant and others had driven into and loaded upon one of the stock cars of defendant for shipment a number of horses, appellant, in pursuance of his duty by reason and virtue of his said employment, was attempting to close, fasten, and secure the gate or door to said stock car, in order to prevent the escape of said horses therefrom, when one of said horses, without fault or negligence on the part of appellant, rushed out of said stock car, through the door or gateway entrance which appellant was endeavoring to close, and, before appellant had time to or could make his escape, kicked appellant and broke his thigh; that said door or gate was operated, in opening and closing, by means of a bar of iron attached to the side of the car, and loops of iron attached to the top of the door and to said bar, through which loops said bar slided in opening and closing the door; that bolts of iron passed through the side of the car, the ends of which bolts were in close proximity to said bar of iron on which said loops slided; that, through the negligence of appellee, one of said bolts became displaced and out of adjustment, and projected from the side of the car in such manner as to interfere with and prevent the sliding of said loops on said bar; that when appellant attempted to close said door, as aforesaid, said bolt so displaced, out of adjustment, and projecting, as aforesaid, caught against one of said loops, and prevented the closing of said door; that appellant never knew that said bolt was displaced, out of adjustment, and projecting, as aforesaid, until he was attempting to close said door, and until said loop caught against the same, at a time too late for him to protect himself against said injury; that appellee knew of said defective condition of said bolt, or might have known...