Texas & P. Ry. Co. v. Robertson

• Decision Date: 22 December 1891
• Citation: 17 S.W. 1041
• Court: Texas Supreme Court
• Parties: TEXAS & P. RY. Co. v. ROBERTSON <I>et al.</I>

17 S.W. 1041

TEXAS & P. RY. Co. v. ROBERTSON et al.

Supreme Court of Texas.

December 22, 1891.

Appeal from district court, Marion county; E. W. TERHUNE, Judge.

Action by the mother, wife, and children of T. B. Robertson against the Texas & Pacific Railway Company to recover damages for Robertson's death through the negligence of the railway company. Plaintiffs obtained judgment, and defendant appeals. Affirmed.

F. H. Prendergast, for appellant. P. H. Rowell and C. A. Culbertson, for appellees.

STAYTON, C. J.

T. B. Robertson having been killed while in the employment of appellant as a brakeman, this action was brought by his mother, wife, and children to recover damages resulting from his death, which it is alleged resulted from the negligence of the railway company. The evidence, other than the declarations of the deceased, hereafter to be referred to, showed that he was injured while attempting to uncouple running cars. A witness was permitted to state that "I was about fifty or sixty yards from Robertson when he was hurt, and I heard Robertson halloo, and I ran immediately to him, and reached him before they got him out from under the tender. He was fully conscious. I was about the first to reach him, and he then and there stated that he was uncoupling the car from the engine, and just as he pulled the pin he stumbled, and the brake-beam caught his foot and threw him across the rail." This evidence was objected to on the ground that it was hearsay, and not part of the res gestæ, but the objection was overruled, and this ruling is assigned as error. It may be that the admission of such evidence is hard to reconcile with the principles of evidence, and, could we deem it an open question, the writer would be inclined to reject it, but the great weight of American authority is in favor of its reception, and the former decisions of this court are on the same line. The question was considered at the present term, and such evidence held admissible, in the case of Railway Co. v. Anderson, 17 S. W. Rep. 1039, wherein authorities bearing on the question are cited. The circumstances under which the declarations in question were made were such as to almost preclude the belief that any self-serving purpose prompted them, and we cannot hold that it was error to receive the evidence.

There was evidence tending to show that the brake-beam was not in good order, and that it came nearer to the rails than it would had it been in good order, but there was some conflict as to this.

The averments of negligence on the part of the railway company on which plaintiffs based their right to recover contained the following: "That while the said T. B. Robertson was in the regular and proper and careful discharge of his duties uncoupling a car from the tender of the engine pulling the freight train upon which said Robertson was employed as aforesaid, at night, on said January 12, 1889, and while said Robertson was passing carefully from between said tender and said car, the spikes in the frog-brace, which were then and there out of order, dangerous, and unsafe, tripped the said Robertson, and the brake-beam of said tender, which was old, out of order, and dangerous and unsafe, caught the foot of said Robertson, and threw him down, and held him so that the wheels of said tender and car passed over the body of said Robertson, and cut off both of his legs, and cruelly killed him, as aforesaid." It was further alleged that his death was caused by the negligence of the appellant and its employes, in that "said cars and the tender and the track and the road-bed and the frog and switch and frog-brace and the brake-beam of the tender and the guide-rails, at the place where said injuries were inflicted upon said Robertson, were each and all old, out of order, dangerous, and unsafe; that the section foreman of said section at that time was incompetent and unfit; that all these things caused and contributed to said injuries; that the unsafe and dangerous condition thereof was wholly unknown to said Robertson; that the incompetency and unfitness of said foreman were unknown to said Robertson; and that defendant and its agents and employes had full knowledge of all these things, and might have known the same by the exercise of legal and proper care." Lee Whitworth, who was by occupation a track foreman, testified: "Shortly after Robertson was injured I examined the part of the track where he was injured. There were there side tracks, frogs, and frog-braces and guide-rails; and I found the spikes and frog-bolts in an unsafe condition by the spikes being up from the rails, and frog-bolts extending out too far from the frog, making it unsafe for trainmen, and liable to trip and throw them. * * * I examined the...