T. & P. R'Y Co. v. O'donnell

Decision Date24 October 1882
Docket NumberCase No. 1089.
Citation58 Tex. 27
CourtTexas Supreme Court


APPEAL from Bowie. Tried below before the Hon. B. T. Estes.

Action for damages for loss of an arm by the negligence of the railroad company. Verdict and judgment for $8,000.

This case should have appeared in 57th Texas, but the transcript was not accessible. More space than usual is allowed it on account of the dissenting opinion of Associate Justice Bonner. The evidence was as follows:

Dr. Rooks, a witness for the plaintiff, testified that he resided in Texarkana, Texas; was a practicing physician; that he knew the child, Margaret Ellen O'Donnell. Was called upon by the grandmother of the child on May 12, 1880, to assist in dressing its arm; found the arm cut off between the shoulder and the elbow, and so lacerated and bruised that it was necessary to amputate the arm, or the stub remaining, at the shoulder joint, and, together with Dr. Dale, removed the arm at the shoulder joint. The injury is of course permanent. It was the left arm. I have been partially paid for my services. The railroad company paid me ten dollars. Have seen the railroad track at section house No. 59, where the accident is said to have occurred. The track is straight and free from obstructions.

Cross-examined: Dr. Dale was employed by the company and assisted with the case.

Mrs. Lizzie O'Donnell, a witness for the plaintiff, testified: I reside in Texarkana; am the mother of Margaret Ellen O'Donnell, the plaintiff. I know William Behan. On the 12th of May, 1880, I lived at section house No. 59, on the line of the Texas & Pacific Railway Company, in Bowie county, Texas. This section house belongs to the T. & P. Railway Co. Went there to board section men; was employed by the roadmaster to keep the section house and board the men. The lower step of the section house is about fifteen feet from the track. The house is situated on a bank, by a cut about four or five feet high; the track was straight for half a mile above and below the house; the child was hurt May 12, 1880. I went down to a branch that morning to wash; the branch was about two hundred yards from the house, and only a step from the railroad. When I left the house I told my sister to take care of the baby, as the train was coming. When I got to the branch, the train passed me going up grade slowly toward the section house. In a moment or two I heard the bell ring and one sound of the whistle. I was attracted to the house by the screaming of my sister; I ran in and found the baby standing on the floor with its left arm cut off. I got a sheet, wrapped it around the baby, got in the caboose attached to the train, and went to Texarkana to my mother's house. No one was with me in the caboose except my child, the conductor and train men being, as I supposed, on a different part of the train. The child was eighteen months and nine days old when the accident occurred; had been weaned about two months. I found Finegan, the fireman, with the child when I reached the house. I got to the house before the conductor did. The child was sick for two months; one month we held her in our arms constantly, and now, when the weather is damp and cloudy, the child complains of its arm. My sister resided at the section house with me, and assisted me in cooking and washing for the section men, and always took care of the baby when I was absent from the house. My sister was then over fourteen years of age and well grown for her age. My circumstances were such that I had to do my own housework, washing, ironing and cooking for the section men. There was from eight to twelve section men boarding with me at the section house. I am a widow, and was at that time, and went to keep the section house to try and make money to pay off a mortgage upon my homestead. I lived at the section house thirteen months. There was no fence around the house in front next to the railroad. The bank was cut down from the steps to the ditch beside the track. The ditch was about two feet deep, with a plank walk leading from the steps across the ditch and on the track; the house was fenced in the rear. The child always played in the back yard. The last time I saw the child before it was hurt, my sister was standing on the gallery, holding the baby in her arms. I was then about fifty yards from the house. I went out to the branch, placed my bonnet on a bush, put the fire which I carried in my hand under the pot, and immediately thereafter I heard my sister screaming.

Cross-examined: The house was in the same condition when I went there as it was on the morning my child was hurt. There was no yard around the front of the house when I went there, and the house stood the same distance from the track. I went there by permission of the defendant and without paying rent. The road runs nearly east for a mile, going from Marshall by the section house. It is up grade from the switch to the house. Don't know how it is through the switch. There was nothing to impede the view coming east toward the section. I did not see engineer Holmes at the house; saw Finegan and conductor Martin. Neither of them said there how it happened. Martin said he did not know how it happened, as he was in the caboose at the time, and only got to the house as I got there. I found Dr. Dale at my mother's when I got there. Suppose conductor telegraphed for him. Don't know who paid him. I never was asked for pay. My mother sent for Dr. Rooks. Both of them attended on the child. My mother lived in Texarkana at the time. I went in the caboose to Texarkana.

Miss Rebecca Brownlee, a witness for plaintiff, testified: I am sister to Mrs. O'Donnell, and am between fifteen and sixteen years old. In May last I lived at section house No. 59, on the line of the Texas & Pacific Railroad, in Bowie county, Texas. My duties were to assist my sister in cooking, washing, and caring for the section house. I remember the morning the baby was injured; it was a bright, clear, sunshiny morning. I saw the baby that morning only five minutes before it was hurt. My sister went to the branch to wash. When she (my sister) left the section house I was standing on the gallery holding the baby in my arms. Mrs. O'Donnell, on leaving the house, said to me: “Take good care of the baby, the train is coming.” I carried the baby into the kitchen, the rear room of the house and one furthest from the railroad, and put it down on the floor and commenced washing the dishes that had been used at breakfast. While I was washing the dishes Finegan, the fireman of the engine, brought the child to the room where I was. I said to Finegan, “Whose child is that?” He replied, “Yours.” I said, “What is the matter with it; is it dead?” He said, “No, it only has its arm cut off; the engine run over it.” I began to scream for my sister; she came. I ran out to the train and asked the train men to come and help us; it was not more than four or five minutes after I put the child down in the kitchen until Finegan brought it in the house. When the train stopped, the engine had not quite reached opposite the corner of the house. After Mrs. O'Donnell came to the house, she wrapped the child up in a sheet; a caboose attached to the train was pulled up opposite the door, and Mrs. O'Donnell and the baby were helped into the caboose and the train proceeded to Texarkana, leaving me at the house alone. As soon as the train left, I ran up the track, following the train about one-quarter of a mile, to Matthews' mill, for Mrs. McKenzie to come to the house and stay with me. I returned to the section house in company with Mrs. McKenzie. Upon reaching the house, at the suggestion of Mrs. McKenzie, we went out to look for the baby's track. We tracked the baby from the steps across the plank, over the ditch on to the track, and down the center of the track between the rails; between the last track and the blood, the ground seemed to have been disturbed within a few feet of where we found the blood on the rails, where the arm had been cut off. I looked on the outside of the track and along the side for the baby's tracks, and found none. There was no way for the baby to get on to the track except out of the door, down the steps and across the plank over the ditch. The track is perfectly straight for near a mile. Three-quarters of a mile of this distance is west of the house and in the direction from which the train was coming. The track was clear and free from all obstructions, having but recently been cleared off on both sides and surfaced. The child was barefooted on that morning. The kitchen was the extreme rear room of the house. That morning I was to wash up the dishes, clean up the house, make up the beds and get dinner for the section men, while my sister, Mrs. O'Donnell, was doing the washing for the family and the men.

Upon cross-examination witness said: The accident occurred an hour or two after daylight. My sister left the house about a quarter past seven o'clock A. M. I was induced by the suggestions of Mrs. McKenzie to go and look for the tracks, and see the signs of injury on the rails. The distance we tracked the child was about twenty-five yards from the section house. I did not discover that the child was gone until Finegan brought it in. Heard the train coming. Did not keep the front door fastened. If they had been closed the child could not get out.

Upon the direct examination witness says: I carried the child into the kitchen, which is the furtherest room from the track, when its mother went to the branch.

Mrs. McKenzie, witness for the plaintiff, testifies: I resided at Matthews' mill in May, 1880. I was at the place where the child was hurt, the same morning, and soon after it occurred. Myself and Miss Rebecca Brownlee tracked the child down between the rails to within a few feet of where we found the blood on the rails, about twenty-five yards from the front of the house. We saw the ...

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