Texas Cent. Ry Co. v. Lyons

• Decision Date: 08 February 1896
• Citation: 34 S.W. 362
• Parties: TEXAS CENT. RY CO. et al. v. LYONS.
• Court: Texas Court of Appeals

34 S.W. 362

TEXAS CENT. RY CO. et al. v. LYONS.

Court of Civil Appeals of Texas.

February 8, 1896.

Appeal from district court, Kaufman county; J. E. Dillard, Judge.

Action by J. D. Lyons against the Texas Central Railway Company and another. Judgment for plaintiff. Defendants bring error. Reversed.

L. W. Campbell, for plaintiff in error Texas Cent. Ry. Co. L. C. Alexander, for plaintiff in error Midland Ry. Co. J. D. Cunningham, for defendant in error.

LIGHTFOOT, C. J.

The following statement of the case is adopted: This suit was brought by J. D. Lyons on March 23, 1893, to recover damages for personal injuries alleged to have occurred on March 29, 1892, while appellee was a servant of the Texas Central Railway Company. The plaintiff alleged that after the injuries complained of the Texas Central Railway Company sold, transferred, and conveyed its line of railway, on which such injury occurred, to the Texas Midland Railroad, and that the latter purchased with knowledge of plaintiff's claim against the property for the injuries to plaintiff. It was alleged that the Texas Midland Railroad was a corporation duly incorporated, etc., and plaintiff sought to recover damages against both companies. The principal acts of negligence relied on by the plaintiff in his petition are defective roadbed, and defective loading of cross-ties on the flat car upon which he was injured, as fully shown in said petition. The defendants answered, setting up various defenses, among which were contributory negligence on the part of the plaintiff, and that he assumed the risk of being injured by the handling of crossties; he being at the time section boss, and, in performance of his duty, distributing ties along the road. The case was tried by a jury March 7, 1894, and resulted in a judgment for plaintiff against both defendants for $900, besides cost of suit, from which judgment both companies have sued out a writ of error to this court.

The testimony of the defendant in error shows: That he was an employé of the Texas Central Railway Company, as a section boss, and had several hands working under him. That he was an experienced railroad man. On the morning of March 29, 1892, he was at work on the road with his men, putting in ties and surfacing up track, when a mixed train came along, having on board the superintendent of the road, who had charge of the train, and who ordered him and his men to get on the train, so as to distribute some cross-ties which were loaded on two flat cars, at proper places along the road. The train had in it some passenger cars, besides the flat cars,—the passenger cars being on the rear end of the train; and, after the train started, appellee was ordered by the superintendent to go out and show the engineer where to throw these ties. He got out on one of the flat cars, and the cross-ties, which were improperly loaded, began to roll down towards him. He caught hold of one of the cross-ties, and attempted to hold it, to keep it from falling off between the cars, and was struck on the shin by a tie, and injured; but he does not know whether it was by the tie he held, or another one. He could remember but little, if anything, that occurred after he was struck. The road and roadbed at this place were in bad condition, but appellee knew of its condition; and he also knew that the cross-ties were improperly loaded, with no stakes to prevent them from rolling off. He was familiar with the road, and it was a part of his business, as section boss, to assist in the proper distribution of the cross-ties along the track, and to indicate where they should be put off. Witness McWilliams, superintendent, who was put on the stand by plaintiff, testified that immediately after the injury he talked with plaintiff, and asked him why he held onto the cross-tie,—that he was a fool for doing so,—and plaintiff said he knew he was a fool for holding onto the tie, and had learned it by experience. The only eyewitness to the accident, besides appellee, was Joe Roark, the brakeman, who was introduced by appellants, and his testimony was, in substance, as follows: "At the time that Mr. Lyons was hurt, I was braking on the train. When he got knocked off, I was right at him. He was fixing to unload some ties from the cars. We stopped down there in the bottom, and picked him up. We always had orders, when we were going with ties, to let them know where we are, and they would pick us up. He wanted to unload the ties on the other side of the section house. This is about a mile to a mile and a half of where the accident occurred. In going up the hill, I was standing on the car, right in front of him,—on the same car he was on. He was trying to hold a tie on. I told him to let it go. Mr. McWilliams gave us orders that, whenever a tie was going to fall, to let it roll off. I told him he had better let that tie loose, and let it go. He stated, `No; I can hold it on.' I jumped off the car, and got on the car behind. I looked at him, and said, `Mr. Lyons, you had better turn that tie loose'; and he said, `We have not got much further to go, and I guess I can hold it.' We came to a low joint in the road, and the tie slipped down between the cars, and that threw him on the car where I was. His heels kicked up, and I saw that he was going to fall, and I ran and grabbed him, and he halloed, and I halloed to the engineer; and the engineer looked back, and stopped the train while I was holding on to Lyons, and the engineer was the first man that got to him, after me." This witness further says: "I saw the tie when it hit him. I do not know at what period it hit him. It hit him during the time I told him to let loose. The tie hit him while he was holding the tie that I told him to let loose. One end of the tie slipped off, and the other end— while the train was moving along—the other end struck him."

1. The second and sixth assignments of error, attacking the testimony of the witnesses Pat Kennedy and J. D. Lyons, in which they state that the ties were improperly loaded, are not well taken. These witnesses were both experienced railroad men, and were competent to testify on that subject. Whether the ties were or were not properly loaded, was a question of fact, about which the witnesses could testify. Railway Co. v. Johnston, 78 Tex. 540, 15 S. W. 104; Railway Co. v. Jarrard, 65 Tex. 565; Railway Co. v. Richards, 83 Tex. 206, 18 S. W. 611.

2. We find no error in the admission of the testimony of Lyons to contradict the witness Joe Roark, as it appears from the record that the proper predicate was laid, as to time and place of the declarations.

3. The eighth, ninth, and twenty-second assignments of error raise the point that it was not shown by the deed from Charles Moran and others, as "purchasing trustees," to the Texas Midland Railroad, dated January 23, 1893, and the testimony of E. H. R. Green, that the railroad property was so acquired by the Texas Midland Railroad as to make it responsible for the acts of the ...