Trinity & B. V. Ry. Co. v. Geary

• Decision Date: 20 January 1915
• Docket Number: (No. 2738.)
• Citation: 172 S.W. 545
• Parties: TRINITY & B. V. RY. CO. v. GEARY.
• Court: Texas Supreme Court

172 S.W. 545

TRINITY & B. V. RY. CO. v. GEARY.

(No. 2738.)

Supreme Court of Texas.

January 20, 1915.

Error to Court of Civil Appeals of Eighth Supreme Judicial District.

Action by Morris Geary against the Trinity & Brazos Valley Railway Company. Judgment for the plaintiff was affirmed by the Court of Civil Appeals (169 S. W. 201), and the defendant brings error. Judgment of the district court and of the Court of Civil Appeals reversed, and cause remanded.

N. H. Lassiter, of Ft. Worth, and Andrews, Streetman, Burns & Logue, of Houston, for appellant. Jno. Lovejoy and Presley K. Ewing, both of Houston, for appellee.

BROWN, C. J.

An answer to the application for writ of error having been filed, and the application granted, the case will now be disposed of.

Defendant in error instituted this suit in the district court of Harris county, seeking to recover from the railroad company damages for an injury received while he was in the employ of said company as foreman and while engaged "in hauling and unloading gravel from a train on the railroad of the plaintiff in error." Negligence which caused the injury was set up in separate counts, but each count is in the same language, except as to the specific negligence.

The petition alleged [as stated by Higgins, J., in the Court of Civil Appeals (see 169 S. W. 203 et seq.)]:

"That while he was so engaged in riding, standing about the center of a flat car, or, at any rate, thereon, where he had a right to be (which car was the second car from the caboose at the north end of said train), the brakes were, unexpectedly to him, suddenly applied and the car suddenly and abruptly stopped, as would be in an instantly applied emergency, whereby he was thrown northward about 15 feet to the end of the car, and caused to fall onto and against the car and from the car to the ground, whereby he sustained injuries which were specifically alleged, together with the items of his pecuniary damage. The allegation of negligence in the first count reads: `That one of defendant's employés engaged in operating said train, being one of the operatives thereof, in the course of his service for defendant in that behalf, and acting within the scope of his employment for it, while said train was moving as aforesaid, uncoupled cars of said train without turning the angle cocks and confining the air, whereby said cars separated and thereby burst or parted the air line or hose, by means whereof the air was suddenly applied to the brakes, and the car on which plaintiff was riding suddenly and abruptly stopped as aforesaid, which act on the part of defendant's said employé in so handling said car was negligence towards plaintiff, and a proximate cause of the injuries suffered by him as aforesaid. * * *'

"The allegation of negligence in the third count reads: `That aforesaid train, so causing injury to plaintiff as aforesaid, including its operation, handling, and equipment, was under the exclusive management and control of the defendant or its employés other than plaintiff, and the accident to plaintiff, so occasioned as aforesaid, was such as in the ordinary course of things does not happen if those who have the management and control use proper or ordinary care; and plaintiff's said injuries, so suffered on account of said brakes being suddenly applied so as to produce said sudden and abrupt stop of the car, were proximately caused by negligence of the defendant, or of its agents or employés acting for it within the scope of their employment in that behalf, due to a want of ordinary care either in the operation or handling or in the equipment of said train, whereby it was, on account of negligence of the defendant or imputable to it, either improperly operated or handled defectively or insufficiently equipped, but the particular or particulars of which negligence are unknown to plaintiff, and he cannot more definitely or with greater certainty specify such. * * *'

"Defendant answered by general denial and plea of assumed risk and contributory negligence.

"Upon the issues raised by the pleadings, the jury was instructed:

"`If you believe, from the evidence, that one of defendant's employés engaged in operating the train in question uncoupled the cars of the train without turning the angle cocks and confining the air, and that thereby the cars were caused to separate and to burst or part the air hose and to apply the air to the brakes, and that the effect of this was to stop the car on which plaintiff was riding suddenly and abruptly, and that by reason thereof plaintiff was thrown and caused to fall and suffer injuries substantially in the manner alleged, and if you further believe that such operative in so doing, if he did, was acting within the course of his service and scope of his employment for the defendant, and that such act on his part, if committed, was a want of ordinary care towards plaintiff, and that such want of ordinary care, if any, was a proximate cause, as before defined, of alleged injuries to plaintiff, then find for the plaintiff under the first count of his petition, and so say by your verdict. * * *

"`If you do not find that an operative of the train uncoupled the cars without turning the angle cocks and confining the air, but do believe, from the evidence, that the cars separated and broke or parted the air hose, and that thereby the brakes were applied and the car on which plaintiff was riding suddenly and abruptly stopped, and that by reason thereof plaintiff was thrown and caused to fall and to suffer injuries substantially in the manner alleged, and if you further believe that such an accident does not, in the ordinary course of things, happen if those who have the management of the train, including its operation and equipment, use reasonable care, and if you further believe that such operation of the cars and application of the brakes and abrupt and sudden stopping of the car on which plaintiff was...