Texas & P. Ry. Co. v. Cumpston
| Decision Date | 01 June 1893 |
| Citation | 23 S.W. 47 |
| Court | Texas Court of Appeals |
| Parties | TEXAS & P. RY. CO. v. CUMPSTON et al. |
Appeal from district court, Harrison county; W. J. Graham, Judge.
Action by Mary A. Cumpston and others against the Texas & Pacific Railway Company for the death of Charles D. Cumpston, caused by defendant's negligence. From a judgment entered on the verdict of a jury in favor of plaintiffs, defendant appeals. Reversed.
F. H. Prendergast, for appellant. M. R. Geer, L. P. Wilson, and Pope & Lone, for appellees.
Charles D. Cumpston, an employe of the Texas & Pacific Railway Company, was killed July 1, 1890, in the yard of the company at Marshall, while repairing a car on the "table" track in said yard, by being caught between the car upon which he was at work, and another car, upon the same track, propelled against it by a blow from a switch engine, which was being run along another track, called the "Lead" track; the cause of the collision being that the car which was struck by the engine stood too near the junction of the lead track and the table track, which was a side track going out from the lead track. His surviving wife, Mary Cumpston, and her children, and the father of deceased, brought this suit against the railway company for damages. The defense is that the deceased and his fellow workmen had moved the cars they were sent to repair, and placed them so near the lead track that one of them was struck by the passing engine, and moved and knocked against the car upon which deceased was at work, and thereby caused the death of Cumpston. Defendant's yard at Marshall contained a number of tracks, four of which, including the table track, were used as storage tracks, to place cars upon that were needing repairs, some of which were sent for repairs to the shops, while others were repaired as they stood on the tracks. These tracks were in charge of the foreman of the shops, who controlled the right of the switchmen to go upon them, and, before putting cars upon them, it was the business of the switchmen to see that there was no one upon them. The lead track belonged to the transportation department, and was used to convey cars from one part of the yard to another, while the table track was used to convey cars from the lead track to the shop, to be repaired. The switch engine would come in on the lead track, but did not go on the table track, unless directed to do so by some one in the car department. The four tracks mentioned were constantly used for repairing On the morning of the accident the foreman of the shops sent Cumpston and two other men, named Burnett and Boyett, to repair some cars that were standing on the table track. When the workmen got to the place they found the cars standing close together, and it was necessary to separate them in order to work on them. There were eight or nine cars on the track, which...
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