Texas & P. Ry. Co. v. Hohn

• Decision Date: 18 October 1892
• Citation: 21 S.W. 942
• Parties: TEXAS & P. RY. CO. v. HOHN.
• Court: Texas Court of Appeals

21 S.W. 942

TEXAS & P. RY. CO. v. HOHN.

Court of Civil Appeals of Texas.

October 18, 1892.

Appeal from district court, Gregg county. Action by John Hohn against the Texas & Pacific Railway to recover for personal injuries sustained through defendant's alleged negligence. Judgment for plaintiff. Defendant appeals. Affirmed.

F. A. Pendergast, for appellant. R. C. De Graffenreid and Blanton & Blanton, for appellee.

WILLIAMS, J.

This is an appeal from a judgment for $15,000, recovered by appellee against appellant in the district court of Gregg county for personal injuries sustained by appellee while in the service of appellant in the capacity of brakeman. As no question arises on the pleadings, except that appellant claims there was a variance between the allegations and proof as to the manner in which appellee received his injury, it is unnecessary to state them, except so far as they relate to that question. The petition, on this point, alleged, in substance, that while ascending a ladder on the side of one of the cars of a moving train appellee was struck by a beam or piece of timber, which projected too near the road for safety of employes, from a tank standing near the road, which was a part or appendage of the road. It was alleged that the tank was negligently constructed, and that it was an obstruction to the track, which rendered it unsafe and dangerous to employes, whose business it was to be on the outside of the train.

The facts which we find to be established are that a tank had formerly stood where the injury occurred, but had been blown down and disused for some time; that two or three weeks before appellee was injured workmen were put to repairing and rebuilding it; that in the process of repairing they had to erect temporary staging around it, which was somewhat nearer the track than was the tank; that the evidence does not show that either the tank or the main body of the scaffold was too near the track, but does establish the fact that a piece of timber projected from the scaffolding to within a few inches (not more than eight) of passing trains. This timber was put there by the employes working upon the tank, and was shown to have been there on the day before the appellee was hurt. It was not necessary for it to project out as it did from the scaffolding, and it was dangerous to brakemen, whose duties required them to be on the outside of cars, and to ascend ladders along their sides, while trains were in motion. Appellee, at Mesquite, got off the train to uncouple a car which was left on the siding, and recoupled the engine to the train. When he had done this he was near the engine of a long train, which began to move off. Seeing that if he waited until the caboose, which was his station when he was not required to be outside the cars, reached him, the train would be going too fast for him to mount it, he climbed upon a flat car which was passing him, reached a stock car, called an "Atchison, Topeka & Santa Fe Car," which was taller than the others, and had no ladder at its end, but had one at its south side, near the end. He got upon this ladder, and began to ascend it, and, as he approached the top, he saw the timber projecting from the tank. He threw his head towards the car, but was struck by the timber, and knocked to the ground. The evidence shows that brakemen are required to perform duties which necessitate their being on the outside of cars, and this act of appellee in mounting the train in motion and going back to the caboose along the tops of the cars was customary under such circumstances. Appellee had not seen the tank since the work of repairing began. He had been off the road for about 10 days before he was hurt, and passed over it, going west, the day before, for the first time after the rebuilding commenced. His position on the train was then such as to prevent him from seeing the tank, and he did not in fact see it. The tank was about one half mile east of the siding at Mesquite. Prior to his injury, appellee was making from $65 to $75 per month. His injuries were serious. His skull broken, his hip knocked in and crushed, his spine seriously impaired, his urinary organs permanently and seriously deranged. His strength has been so depleted that he has to walk with crutch or stick, and he can walk but a short distance without stopping to rest. From the time of his injuries up to this time he has undergone great suffering, both physical and mental. His sleep is but partial, and his rest at night very imperfect. He is now unfit for any kind of business, and has to take medicine all the time, and his condition does not improve thereby. He is a constant sufferer of most acute pain. His digestion is so enfeebled, and his appetite so impoverished that he is greatly reduced in health and strength, with greatly impaired disposition to sleep. His internal injuries are of such a character as to cause great pain, and medical skill and remedies are alike unavailing to give relief, and his doctor stated that his injuries will continue through life, and that in the mean time the appellee will undergo suffering as heretofore, and that it is only a matter of very little time when death will result from them.

Appellant's first assignment of error complains of the refusal of a special charge that if "the timbers that struck plaintiff were the timbers of a temporary scaffolding erected by the employes of defendant in order to rebuild or repair the tank, and no part of the permanent structure injured plaintiff," then the jury would find for the defendant, "because the negligence of the employes who constructed the temporary scaffolding was the negligence of those persons who were fellow servants with plaintiff, and he cannot recover for their negligence."

The second assignment is that the court erred in not granting a new trial because the verdict is not supported by the evidence in this: "The evidence showed that it was a plank of a temporary scaffolding at the water tank that struck plaintiff, and no part of the water tank struck him." The proposition involved in the special charge is that the mere fact of the timber which struck appellee was part of a temporary structure, erected for the purpose of repairing the tank, would defeat appellee's action. Appellant owed duties to its employes, not only in the construction or repair of...