St. Louis, A. & T. Ry. Co. v. Lemon

• Decision Date: 26 January 1892
• Citation: 18 S.W. 331
• Court: Texas Supreme Court
• Parties: ST. LOUIS, A. & T. RY. CO. v. LEMON.

18 S.W. 331

ST. LOUIS, A. & T. RY. CO. v. LEMON.

Supreme Court of Texas.

January 26, 1892.

Commissioners' decision. Section A. Appeal from district court, Dallas county.

Action by E. J. Lemon against the St. Louis, Arkansas & Texas Railway Company, for personal injuries. Verdict and judgment for plaintiff. Defendant appeals. Reversed.

Perkins, Gilbert & Perkins, for appellant. Robt. H. West, for appellee.

COLLARD, J.

This suit was instituted by appellee in the district court of Dallas county, on November 23, 1888, for personal injuries alleged to have been received by him on July 7, 1888, while engaged in the service of the company as a member of a bridge gang. Appellee alleges that Chris Stevens was foreman in charge of the bridge gang, "with full power to employ and to discharge the members of said gang, and had full control of the same by the instructions and with consent of defendant; that said Stevens ordered appellee and three other men of the gang to take one of appellant's hand-cars, and go to a well about one and one-half miles distant after water; that, in obedience to said order, appellee and three other members of the gang took a hand-car, and went for the water; that about the time they reached their destination they saw a train rapidly approaching around a curve; that the four men lifted the hand-car from the track, and that, in doing so, appellee's hand was bruised and sprained, on account of which he was confined to his room for three months, and suffered great physical pain, and his hand, by reason of said bruise, is permanently injured; that such injury was caused by reason of an insufficient number of men being sent to handle said hand-car; that four men were not sufficient to take it from the track in case of meeting trains; that defendant knew, or, by the use of ordinary diligence, ought to have known, that four men were not sufficient to handle the car and lift it off the track; that defendant knew, or ought to have known, that the train would pass, and that the men on the hand-car would have to lift the same off the track, which facts were unknown to plaintiff, and that he was guilty of no contributory negligence," etc. Appellant answered by general and special exceptions, general denial, and specially answered that, if any injury was done to appellee through the negligence of any one, it was that of a fellow-servant; and also specially pleaded contributory negligence on the part of appellee. Appellee recovered judgment for $500. Appellant prosecutes this appeal, and assigns errors.

The record shows no action of the court upon the demurrer, or the exceptions to the petition. Plaintiff's evidence supported the facts alleged in his petition: That Stevens was in charge of the bridge gang as boss, had authority to employ and discharge men working in the gang under him, and ordered plaintiff and three other men to go after water on the hand-car, as alleged, which they did; that, upon the approach of a train, the men lifted the hand-car off the track in a hurry, as they had to do, and, in doing so, plaintiff testified "it bruised my left hand so badly that it caused a rising on it," etc., which rendered it useless. He said four men were not sufficient to lift the car from the track with safety, when a train was approaching. The plaintiff testified, on cross-examination, that "there was nothing hidden about the construction of the hand-car. Its structure, machinery, and weight were open to the common observation of every one. I had as favorable opportunity to judge of its weight and the number of men necessary to lift it from the track as any one could have. I never picked it up and lifted it off the...