Texas & N. O. R. Co. v. McDonald.

• Decision Date: 28 January 1905
• Citation: 85 S.W. 493
• Parties: TEXAS & N. O. R. CO. v. McDONALD.<SMALL><SUP>*</SUP></SMALL>
• Court: Texas Court of Appeals

85 S.W. 493

TEXAS & N. O. R. CO. v. McDONALD.^*

Court of Civil Appeals of Texas.

January 28, 1905.

On Rehearing, February 24, 1905.

Appeal from District Court, Harris County; Norman G. Kittrell, Judge.

Action by Ed. McDonald against the Texas & New Orleans Railroad Company. Judgment for plaintiff. Defendant appeals. Affirmed.

Baker, Botts, Parker & Garwood, Andrews, Ball & Streetman, and C. L. Carter, for appellant. R. R. Hazlewood and John W. Parker, for appellee.

GARRETT, C. J.

This action was brought in the district court of Harris county by Ed. McDonald against the Texas & New Orleans Railroad Company for the recovery of damages caused by personal injuries inflicted on him by running against him with a car, and running it over his legs, so that they had to be amputated. The ground of negligence alleged was that the defendant moved its train without warning, or using care to discover plaintiff's presence under the car. The plaintiff was one of a gang of men employed by one Shea to unload gravel from cars hauled by the defendant, and at noon was seated on the end of a tie on defendant's side track, when he was struck as alleged. The defendant answered, pleading a general demurrer, general denial, and a plea of contributory negligence—that the plaintiff knew or ought to have known that the cars would be moved at the noon hour, and that he negligently assumed a dangerous position under the cars, and remained there, without taking proper care for his own protection. The case was tried by jury, and resulted in a judgment for the plaintiff for the sum of $5,000.

The facts show: That on July 24, 1903, the plaintiff was working in company with a gang of men in the employment of Shea, a contractor for the improvement of the streets of Houston, and was engaged in unloading cars of gravel from the track of the defendant situated on Burnett street, running east and west. That there were 18 or 20 gravel cars standing on the track east of McKee street and west of Hardy street. All had been unloaded except two cars when the hour of noon arrived, and the men stopped for dinner. There were 15 or 20 wagons and 30 or 40 men engaged at work. When the whistle blew at noon the men got off the cars, and, taking their dinner buckets, sought shade to rest and eat their meal. On the south side of the cars some tall weeds grew in the street, and there were a fence and some trees that afforded shade. The men generally were sitting on this side, under the trees, but the plaintiff and two others got under the shade of a loaded car. The plaintiff was sitting on the end of a tie, with his back to the car, when an engine was run in on the track by a switch crew in the employment of the defendant, and moved the car, and caused it to strike the plaintiff and throw him over and mash his feet and legs so that amputation of both legs was necessary. There was evidence tending to show that notice of the approach of the engine had been given by the ringing of the bell on the engine, and that one of the switchmen had gone along the cars on the north side and looked to see if they were clear. There was evidence, also, that notice was given by calling out to the men that the defendant would send in a switch crew during the noon hour to move the empty cars. But plaintiff and witnesses introduced by him testified that there was no ringing of the bell, and no notice given, that they heard, that the empty cars would be moved at the noon hour; and the carefulness of the switchmen in looking for persons under the cars was submitted to the jury along with the other evidence of care, and decided against the defendant. We are of the opinion that the plaintiff was not a trespasser, and that he was rightfully about the track and cars of the defendant, in unloading the gravel cars which had been transported by the defendant for Shea. The questions to be determined by the jury were those of ordinary care on the part of defendant in running in on the track and moving the cars, and of contributory negligence on the part of the plaintiff in exposing himself to injury. These were decided by the jury in favor of the plaintiff, and we see no reason for disturbing their verdict. The defendant knew that there was a gang of men engaged on its track in unloading the cars of gravel, and that they might be expected to be exposed to injury if the cars were moved. The arrival of the noon hour did not convert these men into trespassers. They still had the right to be about the cars, and the defendant's switch crew knew or might have known that they would be resting so that they would probably be exposed to injury. The men had no notice that the switch crew would bring in the engine when it did, and could rest under the assurance that the cars would not be moved until they had been unloaded, and that there would be no danger in sitting in the shade under them. We conclude, therefore, that the plaintiff was injured through the negligence of the...