Texas Pac. Ry. Co. v. Crow

• Decision Date: 11 May 1893
• Citation: 22 S.W. 928
• Parties: TEXAS PAC. RY. CO. v. CROW.
• Court: Texas Court of Appeals

Page 928

22 S.W. 928

TEXAS PAC. RY. CO. v. CROW.

Court of Civil Appeals of Texas.

May 11, 1893.

Appeal from district court, Gregg county; F. J. McCord, Judge.

Action by George W. Crow against the Texas Pacific Railway Company to recover for personal injuries sustained through defendant's alleged negligence. From a judgment for plaintiff, defendant appeals. Affirmed.

F. H. Prendergast, for appellant. R. C. De Graffenried, N. B. Morris, and W. C. Buford, for appellee.

PLEASANTS, J.

The appellee was night yard master for appellant at Toyah, Reeves county, Tex., and while engaged in filling a car with water from a tank was hurt, and brought suit on the 25th of September, 1890, and recovered a judgment against appellant company on the 6th of December, 1891, for the sum of $6,000. Plaintiff was injured on the 29th of September, 1889; had been working for appellant, in its yard at Toyah, for two years. The tank at which he was hurt was in that yard, and he was injured by the spout of the tank falling on him, was knocked from the car on which he was standing to the ground, and was by the blow rendered senseless for some hours. His injuries were severe, and his sufferings, physical and mental, were great; and he was still suffering, at the time of the trial, from partial paralysis of one side, and from loss of hearing, both of which afflictions resulted from the blow received in September, 1889, from the spout of the water tank. The water tank had been out of fix for about three months. The evidence as to the particular defect in the apparatus for using the spout was conflicting. The witness Leonard, who testified for plaintiff, and who was plaintiff's assistant in the yard, testified that the spout was operated by ropes and fixtures, as used on all tanks on the appellant's railway, and that the same was out of repair; that the nuts needed to be loosened and oiled And another witness for plaintiff, Whitney, and who at the time of the plaintiff's injury was yardmaster in the daytime at Toyah, testified that the spout was out of repair; that the pulley through which passed the chain used in raising and lowering the spout was broken. He did not know how long the pulley had been out of repair; discovered it was defective by using it. The witness Leonard further testified that he knew that the fixture for working the spout was defective because he had worked the spout, and because he was told so in July, 1889, by Whitney, the day yard master. He testified, also, that he gave notice of the defect to the foreman of the roundhouse, and the pumper. There were two tanks in the yard, which are designated by the plaintiff as the "Eastern" and "Western" tanks. The eastern tank, the plaintiff knew, was out of order, and for that reason went to the western tank to fill the water car. It was in the line of plaintiff's duties to fill water cars and engines. The water cars are used for distributing water at different points along the line of the appellant's railway. The duties of plaintiff, in addition to filling the engines and water cars, were to make up trains, under orders from the station agent, and to place the cars in their proper positions for being loaded and unloaded, and to place them on the proper tracks when they were to be taken from the yard. These duties were performed in the nighttime, and plaintiff was struck by the spout in the night. He had finished filling the water car, and gave the spout a start upward, in the usual manner, and was turning round, and reaching for his lantern, when he was struck upon the head by something which he supposed was the spout, and was knocked from the car to the ground. Plaintiff had no actual knowledge of the defect in the fixture for operating the spout on the western tank. There is no evidence tending to show that it was any part of plaintiff's duty to keep the tanks or their fixtures in repair, or that it was his duty to inspect them, and to report to the proper officer or servant of the defendant company any defect which might be discovered. The defense was that the plaintiff knew of the condition of the tank and its fixtures, and took the risk, and that defendant did not know of their condition, and that plaintiff compromised and settled his claim on the 26th of November, 1889; and the plaintiff replied that he was not capable of contracting on the day the alleged compromise and settlement was made by him with defendant. That plaintiff did sign a paper which released the defendant from all liability for the injury sustained by him, in consideration of the payment of $100, and that the money was paid him, and used by the plaintiff, are facts established beyond controversy; but, while there is no direct testimony that plaintiff was non compos mentis on the very day on which the release was signed, there is ample evidence to sustain the finding of the jury that such was his condition when the release was signed. The testimony of the two men who witnessed the execution of the release is that plaintiff carefully read over the paper, and then signed it, and that he acted as any other sane man. The plaintiff testified that he had no recollection of ever signing the paper, or agreeing to any compromise, nor had he any recollection of receiving the money from the defendant, and that when he was shown the paper, several months after its execution, he had no knowledge of ever having executed it, and that he immediately afterwards instituted this suit. Plaintiff did not deny his signature to the paper purporting to be his release to the defendant. He...