Southern Pac. Ry. Co. v. Markey

• Decision Date: 26 March 1892
• Citation: 19 S.W. 392
• Parties: SOUTHERN PAC. RY. CO. v. MARKEY.
• Court: Texas Supreme Court

19 S.W. 392

SOUTHERN PAC. RY. CO. v. MARKEY.

Supreme Court of Texas.

March 26, 1892.

Commissioners' decision. Section A. Appeal from district court, Harris county; JAMES MASTERSON, Judge.

Suit by Thomas J. Markey against the Southern Pacific Railway Company to recover for personal injuries. From a judgment for plaintiff, defendant appeals. Affirmed.

T. N. Waul, for appellant.

HOBBY, P. J.

Suit for personal injuries, brought by Thomas J. Markey in the district court of Galveston county, but the venue was changed to Harris county, where the cause was tried, and a verdict was rendered for the appellee, the plaintiff below, for $500. From the judgment entered on this verdict this appeal is prosecuted by the appellant, the Southern Pacific Railway Company.

It appears from the plaintiff's testimony that he was a rear brakeman in the employment of the Southern Pacific Railway Company on its road between San Antonio and Lafayette. That on the morning of May 21, 1888, the train on which he was brakeman was at Tulane station, on said road. As the train was slowly approaching the switch at the station, the plaintiff got off the rear end of the train, and in running to close the switch, so another train could pass over, he fell over a piece of timber, one end of which was lying in the ditch near the road, and the other about 18 inches from the track, and broke his arm. It was a foggy morning, and it was about 5 o'clock. Was using a lantern, but did not see the timber before his injury. Was not expecting it to be there. He testified that he might probably have seen it if he had stopped and examined the ground. This piece of timber was about 12 feet long and 10×12. A witness for plaintiff testified that he saw the timber there that morning for the first time. He did not know how long it had been there. He was baggage master of the train, and they made five-day trips. He had not seen the timber there on the previous trips. There was testimony that the track was in good order; and it was the duty of the track-men, section boss, and bridge men to see that there were no obstruction in the way. One witness testified that he saw some timbers lying near the switch. He knew that they had been repairing a little trestle at the east end of the switch. The timbers he referred to were between the main track and the switch track. These had been there a week. The court instructed the jury that if they "believed that plaintiff, a rear brakeman in the employment of the defendant was, at the time and place he was injured, engaged in his regular duties, and without negligence on his part was injured through the fault and negligence of defendant's agents or servants having charge of the matters and things complained of," they would find for the plaintiff. This charge is assigned as error. It was the duty of the appellant to keep its track free from obstructions of the character shown by the proof in this case. It is as much its duty to do this as it is to furnish safe machinery and appliances for the use of its employes in operating its road, and it cannot relieve itself of this duty by charging its servants with its performance. Railway Co. v. Kernan, 78 Tex. 294, 14 S. W. Rep. 668. An employe does not assume the risk of the dangers arising from an obstruction on the side of the track which renders more hazardous the performance of his duties. The plaintiff in discharging his duties as brakeman, inclosing or opening the switch, was entitled to presume that his duty (keeping the track free from obstructions making his employment more dangerous) would be performed by appellant. Having been injured by the failure to perform this duty on the part of appellant's servants charged with it, he was entitled to recover. The fact that this obstruction was there, owing to the want of care on the part of those employes of appellant charged with the duty of keeping the track free from...