Wells, Fargo & Co. Express v. Boyle

• Decision Date: 06 May 1905
• Citation: Wells, Fargo & Co. Express v. Boyle, 87 S.W. 164, 39 Tex. Civ. App. 365, 12 Tex. Ct. Rep. 994 (Tex. App. 1905)
• Parties: WELLS, FARGO & CO. EXPRESS v. BOYLE et al.
• Court: Texas Court of Appeals

87 S.W. 164

WELLS, FARGO & CO. EXPRESS v. BOYLE et al.

Court of Civil Appeals of Texas.

May 6, 1905.

Appeal from District Court, Hunt County; T. D. Montrose, Judge.

Action by P. A. Boyle against the Wells, Fargo & Company Express and another. From a judgment in favor of plaintiff, the express company appeals. Reversed.

Alexander & Thompson, for appellant. Evans & Elder and A. H. McKnight, for appellees.

BOOKHOUT, J.

Appellee, as plaintiff, in his first amended original petition declared for damages in the sum of $20,000 against the Wells, Fargo & Company Express and the Houston & Texas Central Railway Company in the district court of Hunt county, Tex., alleging that while in the service of the express company, at Dallas, on 7th day of October, he sustained personal injuries while engaged in handling a truck upon which was loaded express packages; that parcels of said express matter fell from the truck, and struck and injured him; that this was due to negligence of the defendant in permitting and causing the platform over which the truck was handled to have a hole or gully therein, and the truck furnished and used by plaintiff was defective and out of repair, in that the tongue was out of repair so that the truck could not be safely guided, and the wheels and axles of the truck were worn, which caused the wheels to wabble on the axles; that said injuries occurred on the platform of the Houston & Texas Central Railway Company, in the city of Dallas, which, under some arrangement between the railway company and the express company, the latter was permitted to use. Negligence was alleged with respect to light or lack of light on platform, but this issue was not submitted to the jury, nor insisted upon by plaintiff. The Houston & Texas Central Railway Company urged a plea of personal privilege to be sued in a county in which it had an agency, and the railway company was by verdict and judgment discharged hence on its plea of privilege. The express company, besides a general denial, answered specially (1) that such injuries as plaintiff sustained were due to his own want of care; (2) that his injuries were the result of assumed risk in course of his employment; (3) that his injuries were the result of negligence of fellow servants and plaintiff's concurring negligence. A trial of the case resulted in a verdict in favor of the railway company on its plea of privilege, and also resulted in a verdict in favor of plaintiff against the express company. From a judgment in favor of plaintiff, defendant appealed.

1. Error is assigned to the action of the court in admitting in evidence, over defendant's exceptions, the testimony of plaintiff's witnesses Drs. Morrow and Spaulding that plaintiff had trouble with his eyes and eyesight. The objection to the testimony was that there was no allegation in the pleading that plaintiff's eyes or eyesight were injured. After alleging the particular acts of negligence, the petition further alleged that "by either or all of said causes the express matter was caused to topple and fall on plaintiff, striking him on the head, left shoulder, crushing him with considerable violence to the ground, and continued to fall on him after he fell to the ground, falling on his breast, hip, and bowels, seriously and permanently injuring him in his head, shoulder, breast, lungs, stomach, back, spine, spinal column, kidneys, and legs; injuring, bruising, lacerating the bones, muscles, ligaments, tendons, nerves, and blood vessels of all of the said parts of his body." Dr. Morrow testified that: "He has also complained...