Texas & P. Ry. Co. v. McCoy

• Decision Date: 10 December 1896
• Citation: 38 S.W. 36
• Parties: TEXAS & P. RY. CO. v. McCOY.
• Court: Texas Supreme Court

38 S.W. 36

TEXAS & P. RY. CO. v. McCOY.

Supreme Court of Texas.

December 10, 1896.

Error to court of civil appeals of Fifth supreme judicial district.

Action by A. E. McCoy against the Texas & Pacific Railway Company for personal injuries. From a judgment of the court of civil appeals affirming a judgment for plaintiff, defendant brings error. Reversed.

F. H. Prendergast, for plaintiff in error. T. P. Young, for defendant in error.

GAINES, C. J.

Defendant in error brought this suit against plaintiff in error to recover damages for personal injuries, and recovered a judgment in the district court, which was affirmed upon appeal. The questions as presented by the pleadings and evidence were: (1) Was there a low joint in the track of the railroad at the place of the accident, and, if so, was the low joint the result of the defendant company's negligence? (2) Was the plaintiff guilty of negligence in placing the bar upon his knee?

We extract the following from the conclusions of fact filed by the court of civil appeals: "A. E. McCoy, appellee, was in the employ of the appellant railway company as a brakeman. On or about October 13, 1890, while in the discharge of his duty at Buchanan station on said road, the engine had to go on a passing track to get out some cars, and it was necessary to couple the head end of the engine to the cars on the passing track. When the engine came to within about forty feet of the standing cars, McCoy got on the pilot (or cowcatcher) of the engine, and, as there was no step on the pilot to stand on, he had to place one foot in between the bars of the pilot and place the other foot on the top or ridge of the pilot; and, when within about eight feet of the cars, he raised the pilot bar to make the coupling. The bar was very heavy, and he had to place it on his knee, and hold it up while * * * approaching the cars. * * * He placed the pilot or coupling rod to the drawhead of the standing car, and the engine pushed it a few feet, when one wheel of the car went into a low joint, and this caused the end of the car to go down and press the coupling rod down on McCoy's knee, mashing and bruising his knee and leg. The bar was so heavy that he could not make the coupling without placing it on his knee, the bar being much heavier than such bars usually are. * * *" The court, after giving a charge correctly presenting the issues, concluded with the following paragraph: "If plaintiff was guilty of negligence, considering the definition of...