Texas & Pac. Ry. Co. v. O'Feil

• Citation: 15 S.W. 33
• Court: Texas Supreme Court
• Decision Date: 14 November 1890
• Parties: TEXAS & PAC. RY. CO. v. O'FEIL.

15 S.W. 33

TEXAS & PAC. RY. CO. v. O'FEIL.

Supreme Court of Texas.

November 14, 1890.

Appeal from district court, Marion county; JOHN L. SHEPARD, Judge.

F. H. Prendergast, for appellant. W. P. McLean and J. J. O'Feil, for appellee.

GAINES, J.

The appellee brought this suit to recover of the appellant corporation damages for personal injuries received by him while serving as brakeman upon its railroad. The cause was tried by the court without a jury, and the assignments of error all question the sufficiency of the evidence to justify a recovery. The plaintiff was employed upon a construction train, in which there was a flat-car for hauling earth, which had its brake-shaft upon the side. The cars being in motion, and the signal for brakes having sounded, the plaintiff turned the shaft to apply the brakes, when it broke about four inches above the ratchet, and precipitated him to the ground, and caused the injury for which he sued. The plaintiff testified that he examined the broken shaft as soon as he recovered from the shock of the fall, and found that there was an old crack or fracture which extended nearly one-third of the way through. So much of the fracture was rusted, while the remainder was bright. He also testified that he turned the shaft in the usual manner, and used no unaccustomed force. He also swore that he knew nothing of the defect until after the injury. The accident occurred near Choctaw station, and the defendant proved that it had an inspector there, whose duty it was to inspect this train, and also inspectors at Sherman, Bonham, and Paris, who were required to inspect all trains passing those stations. A witness for defendant testified that he examined the broken shaft on the next trip after the accident, that it was broken square off about three or four inches above the ratchet, and that the shaft appeared to have been welded there, but that the welded parts had not become separated. There was a flaw or sliver about an inch above the fracture, caused by imperfect welding. He saw no sign of rust or old break on the broken parts. His opinion was that the fracture was caused by the weight of the body being thrown against the shaft, and not by turning it. In his opinion, turning the shaft would not have made "a square" fracture. It would have been twisted apart, and would have shown the twist. The defendant also proved by its master car-builder and its foreman of motive power that they had received no notice of the car being out...