Wiley v. Atchison, T. & S. F. Ry. Co.

• Decision Date: 20 April 1910
• Citation: 127 S.W. 166
• Court: Texas Supreme Court
• Parties: WILEY et al. v. ATCHISON, T. & S. F. RY. CO.

127 S.W. 166

WILEY et al. v. ATCHISON, T. & S. F. RY. CO.

Supreme Court of Texas.

April 20, 1910.

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

Action by Mrs. Leo Wiley and another against the Atchison, Topeka & Santa Fé Railway Company. A judgment of the district court in plaintiff's favor was reversed on appeal to the Court of Civil Appeals, and plaintiffs bring error. Reversed, and judgment of district court affirmed.

For former report, see 118 S. W. 1127.

Patterson & Wallace and Denman, Franklin & McGown, for plaintiffs in error. Turney & Burgess, J. W. Terry, and A. H. Culwell, for defendant in error.

GAINES, C. J.

This suit was brought by Leo Wiley, in her own behalf and that of her minor son, to recover damages for the death of Jesse Wiley, her husband and the father of her son. The suit was also on behalf of the father and mother of the deceased, but during the trial they disclaimed recovering any damages, and they went out of the case. The jury found a verdict in favor of the wife and son of the deceased. The court entered judgment upon the verdict, and overruled a motion for a new trial. But upon appeal the Court of Civil Appeals reversed the judgment and rendered it for the defendant company.

A witness for the plaintiffs testified: "My name is Sam Claborn. I am 17 years old. I live down to Mr. Henderson's by the Santa Fé track. I don't know, sir, how long I lived down in that country—a long time. I remember about two years and a half ago of witnessing an accident to a man in the yards down there. I was going to the store at the time. I was going to the store, and I saw a man fall off—try to stop the car, trying to turn the brake. He fell down. He was trying to keep the car from—stop the car so he fell off in the middle of the track and ran down towards the switch, and caught under the switch, and the coupler hit him in the back. Then the first wheel ran over him and knocked him right across the track. The first two wheels ran over him, and the last knocked him off the track, off the rails. The car was going down towards the old depot. It was a brake on the end of a car. When I first saw him, he had ahold of this brake, trying to turn it. He fell on his back in the middle of the track. Then he got up and ran down towards the switch, and his foot caught in the switch, and the coupler hit him in the back and threw him across the track, and the wheels ran over him. The right foot was caught. It was kind of a hole, ditch like, under the rod. His foot caught under the rod across the track. I was about 40 feet from him at the time I saw him fall. When he got up, he ran about 20 feet before his foot went into the hole. He fell over the rail towards town. There was nobody present there at that time but myself, and, after he was run over, the switchman came."

George Henry Vasquez, a witness for the plaintiffs, testified as follows: "My name is George Henry Vasquez. I am a switchman. My present place of residence is 2304 Congress avenue, Houston, Tex. Yes; I was employed by the defendants the Atchison, Topeka & Santa Fé Railway Company and the...