Citations
- 50 Tex. Civ. App. 499
Full opinion text
LEVY, Associate Justice.
By his petition the appellee claimed that in serving the appellant company in the capacity of a brakeman, and while in the performance of his duties as such brakeman he sustained serious personal injuries occurring to him by being run over by a freight car being operated by the appellant company on its track at Mt. Vernon, Texas, alleged to have been caused by his being thrown down on the rail of the track through the negligence of the company in having and permitting to remain in the track a defective crosstie with a portion of the tie between the rails protruding above the surface of the tie and the track. The appellant answered by general denial, a plea of assumed risk, and contributory negligence.
The case was tried to a jury, and a verdict was returned in favor of the appellee for $22,500, and in accordance with the verdict a judgment was entered for the appellee, from which judgment the appellant company has brought the case to this court on appeal and seeks to have same revised for the errors assigned.
The evidence in the record substantially shows, and we make the findings of fact, that in May, 1905, and at the time of his injury, the appellee was in the employ of the appellant as a brakeman on a freight train. There was maintained by the appellant, and used for the operation of its trains at Mt. Vernon, Texas, a main line track, a house track, and a parallel passing track. The passing track is' on the south side, and the house track is on the north side, of the main line track; the three extending east and west. The east junction of the passing track with the main line track is near the west side of Pittsburg Street crossing, and the east junction of the house track with the main line track is some 200 feet further west. The house track, for some several hundred feet and to its junction with the main line track, and also the main line track from that point, are on a steep or very much of a down grade toward the east. On the occasion of the injury appellant’s eastbound freight train, on which the appellee was serving as a hrakeman, was on the passing track; another freight train, westbound, was on the house track; and a string of seven or eight boxcars coupled together were standing on the house track east of this other freight train and at about the summit of the grade. The engine of the appellee’s train moved forward to the main line track and then back along the main track to the house track, and took two of the boxcars from this string of seven or eight boxcars standing on the house track, which it was desired to place in and to become a part of the appellee’s train. Taking these two boxcars from the string of boxcars, the engine proceeded with them upon the main track east of the passing track junction and then proceeded to shove or “kick” these two boxcars on to the passing track by backing the engine against and with them. The appellee was at this time standing on the south side of the passing track and at the switch, standing about or very near the west edge of Pittsburg Street crossing, operating the switch. At this time also the other westbound freight train, which was standing on the house track, backed against the remaining string of boxcars on the house track from which the two boxcars had just been detached by the engine of the appellee’s train, and started them to rolling down the grade towards the main line track with increasing speed and with no person on them. It was proven that if these boxcars continued to roll with speed gaining, and were not stopped, they would run out from this house track upon the main line track and would “side swipe” the engine of the appellee’s train, or would continue to roll east down the grade of the main line track. Just before the leading boxcar of the two boxcars being shoved in on the passing track reached the switchstand, where the appellee was, he saw this remaining string of cars running down the house track with no one on them toward the engine of his train, and he at once started running to reach and stop them with the brakes; he started slightly ahead of the two boxcars mentioned, frequently glancing back at the two boxcars, and gaining distance ahead of them as he ran. Upon reaching a point where he must cross the passing track to reach, by the nearest route, the other rolling boxcars which were still on! the house track, arid being at the time about twenty feet ahead of the leading car of the two boxcars behind him, he crossed over the ends of the ties and the south rail of the track to the middle of the passing track, and was running up and diagonally across the track directly towards the rolling cars on the house track, when he was suddenly thrown headlong up and across the track, his breast striking the north rail of the passing track. He made efforts to flounder himself off