Citations
- 56 Tex. Civ. App. 61
Full opinion text
TALBOT, Associate Justice.
On the night of September 18, 1907, appellee was engaged as fireman on one of the appellant’s switch-engines between Denison and Ray Yards in Grayson County, when he fell therefrom and sustained personal injuries, to recover damages for which he instituted this suit. A jury trial resulted in a. judgment in favor of appellee for the sum of $3,500, to reverse which this appeal is prosecuted.
At the time appellee was hurt C. J. Ellington was the engineer, and directed and controlled appellee in his work. The night was dark and the accident occurred about three o’clock a. m. The "engine was drawing a long train of cars and going from Denison to Ray Yards, the distance between the two places being about three miles. The engine “wasn’t steaming very good,” and when the switch was reached the engineer stopped the engine upon a trestle, the distance below to the ground being about thirty or forty feet and, according to appellee’s version, which in view of the verdict we adopt, he stepped down where appellee was at work, and said, “By God, can’t you get it hot?” and appellee replied, “I am doing all I can.” The engineer then said, “Get away and let me see in there,” and then said to appellee, “Get your clinker hook and pull this fire down to the back, away from the flue, so it will get hot.” Appellee stepped back to where the clinker hook was usually kept and it was not there, and he then told the engineer that he did not have a clinker hook. The engineer said, “By God, ain’t you got nothing ?” and appellee remarked, “I have got a hoe on the side” (of the water tank or tender), and the engineer said, “By God, get out and get it.” In obedience to this command appellee stepped off the engine and fell to the ground under or near the trestle and was injured substantially as alleged in the petition. Appellee had prior to this time fired engines of appellant at night in going out to Ray Yards, but, perhaps, had not done such work in the daytime more than one day. When he stepped off the engine and got hurt he did not know it was standing on the trestle. Before stepping off he looked, but it was dark, and he did not observe the trestle or the distance from the engine to the ground, and swears he never had, before he was injured, noticed it. The engineer was very familiar with the railroad track between Denison and Ray Yards, and knew or should have known when he stopped the train that his engine was standing on the trestle. He was guilty of negligence in so stopping said engine and in directing appellee to get out and get the hoe, and such was the proximate cause of appellee’s injuries. Appellee was not guilty of contributory negligence; nor does the evidence show that the injuries received by him resulted from one of the risks assumed by him.
Appellant’s first assignment of error complains of the following paragraph of the court’s charge: