Texas & N. O. Ry. Co. v. Echols

• Decision Date: 08 February 1894
• Citation: 25 S.W. 1087
• Parties: TEXAS & N. O. RY. CO. v. ECHOLS.
• Court: Texas Court of Appeals

25 S.W. 1087

TEXAS & N. O. RY. CO. v. ECHOLS.

Court of Civil Appeals of Texas.

February 8, 1894.

Appeal from district court, Liberty county; L. B. Hightower, Judge.

Action by L. Echols against the Texas & New Orleans Railway Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Perrymon, Gellaspie & Bullitt, for appellant. Goldthwaite, Ewing & Ring, for appellee.

GARRETT, C. J.

This action was brought by L. Echols to recover of the New Orleans Railroad Company damages for personal injuries received by him while in the employment of the defendant. A trial of the case in the district court of Liberty county was had February 16, 1893, and resulted in a verdict and judgment in favor of plaintiff for the sum of $15,000. Defendant made a motion for a new trial, whereupon the plaintiff entered a remitter of $6,000, when the motion was overruled, and the judgment was amended, and reduced to $9,000.

Conclusions of Fact.

(1) At the time he received the injuries complained of, which was the 3d day of March, 1892, the plaintiff was in the employment of the defendant, engaged in unloading cross-ties from its cars and stacking them alongside of the railroad tracks, extending from another track, called the "dinkey track," which was north of the track on which the loaded cars stood, to within about three or four feet of the latter track. Plaintiff was working in a gang of four men. The ties were being unloaded to be treated with creosote, and there were other gangs of men, also in the employment of the defendant, whose duties were to load the ties on the trucks that stood on the dinkey track for the purpose of being run into a cylinder for treatment. These men worked in relief, day and night. There were about 200 stacks between and along the tracks, built about 3 feet apart. (2) The men unloading the ties were instructed to commence stacking close to the dinkey track, and to run the stacks towards the track upon which the cars stood that they were unloading. The ties were of sawed pine lumber, squared, and about eight inches thick; and the instructions were to make a foundation by laying two ties at right angles to the track, and to make the stacks with the ties lying squarely upon each other, parallel to the track, to a height of about twelve ties, or eight feet high, leaning a little from the dinkey track, to keep them from falling. A number of tiers so stacked would support each other, and would not fall. The men at the dinkey track were instructed to commence loading from the top of the outer tier, and, according to some of the testimony, if one or two tiers were left standing when the men quit work, they were to be braced by standing some ties up against them, or, as one of the witnesses stated, they were to be thrown down. (3) On the morning of the accident, the plaintiff and the men with him were pushing a car loaded with ties past a number of stacks of ties to an open space where it could be unloaded, when the remnant of a stack, consisting of about four or five tiers, left standing by the relief of the night before, who had been loading ties on the trucks on the dinkey track, fell, probably on account of the jarring of the moving car, and plaintiff was struck by the ties and thrown against the car, and his leg broken and severely injured. He lay six weeks in the hospital. At the time of the trial, about a year afterwards, his leg was crooked, perished away, and limber. When he put his weight on it, it would not bend, and he was not able to walk without crutches. There was a constant sloughing of the bone for several weeks after he left the hospital, and he was not cured at the time of the trial. It had never ceased to pain him. It would never be as good as before on account of the loss of the tissue, and would always require some artificial means of support. At the time he was injured he was earning $45 a month, and had not been able to earn anything since. He had suffered greatly, and had incurred liability for medicines and physician of about $130. (4) From a careful examination of the evidence we conclude that the defendant had adopted no rules or precautions for the protection of the men unloading the cars against liability to injury from the falling of the remnant tiers of the stacks, and by which they would be left in a reasonably safe condition. From the testimony of the witnesses we conclude that there were some instructions with regard to the stacking of the ties, but that no reasonable precaution was taken for the protection of the men unloading the cars. The testimony with regard to the bracing of the tiers when one or two were left standing, and that by one of the witnesses that they were to be thrown down, is unsatisfactory, and tends to show that these precautions were rather for the dinkey-track men than the men unloading the cars. The witness Fenn, who had charge of the...