Texas & P. Ry. Co. v. Dominguez

• Decision Date: 08 March 1911
• Citation: 135 S.W. 681
• Parties: TEXAS & P. RY. CO. v. DOMINGUEZ.
• Court: Texas Court of Appeals

135 S.W. 681

TEXAS & P. RY. CO. v. DOMINGUEZ.

Court of Civil Appeals of Texas.

March 8, 1911.

Appeal from El Paso County Court; Albert S. Eylar, Judge.

Action by Felix Dominguez against the Texas & Pacific Railway Company. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

Edwards & Edwards and Oscar L. Bowen, for appellant. E. B. Elfers and W. W. Bridgers, for appellee.

NEILL, J.

This suit was brought by Dominguez against the railroad company to recover damages for the loss of his big toe, alleged to have been caused by defendant's negligence. The negligence averred is, substantially, that while plaintiff was in the employ of the railroad company as a section hand, engaged in repairing its track under the direction and control of its section boss, plaintiff and two other section hands were ordered by the boss to take a section of a steel rail (designated in the evidence as a switch point) from a hand car and carry it to a designated point on the road, so that it could be laid in time for an approaching passenger train to pass the place where the track was being repaired; that in his hurry to have the switch point laid the section boss directed plaintiff and his fellow servants to take and carry it in their arms; that, after taking hold of the same, he hurried them along over a rough grade of the road; and that while they were so carrying the switch point in obedience to the orders and directions of their boss one of his fellow servants, without warning, dropped one end of it, causing plaintiff to lose his hold and the rail to fall on his foot and cut off his toe; that the usual and customary way of handling and carrying such a rail was with grappling hooks, which were provided for that purpose by defendant; and that, if plaintiff and his fellows had been permitted to handle and carry such rail with such implements, as they started to do and would have done but for said orders of the section boss, his injuries could and would not have been inflicted. The defendant pleaded a general denial, assumed risk, negligence of a fellow servant, and contributory negligence. The case was tried before a jury and resulted in a judgment for the sum of $971.50.

A number of assignments of error attack, in different forms, the sufficiency of the evidence to support the verdict.

There was evidence tending to show that while on October 18, 1907, plaintiff was in the employ of defendant as a section hand, his foreman ordered a switch point...