74 Tex. 276 | Tex. | 1889
After alleging a contract under which appellee became a passenger on one of appellant’s trains, the petition contained the following averments:
“And while plaintiff was so lawfully in defendant company’s said car as a passenger therein, through the gross negligence and carelessness and default of said company, its agents, servants, and employes, said car was run off the track and thrown from the road bed of said railroad and turned over from the embankment thereof, and plaintiff was thereby thrown with great force and violence against the seats and sides of said car, and was thereby greatly injured, cut, bruised, etc. And plaintiff avers that his said injuries were caused and occasioned by the gross neg*278 ligence, carelessness, and default of the defendant company, its agents, servants, and employes.”
There was no more specific averment of fact relied on to show negligence, and the petition was excepted to because it did not allege more particularly acts of negligence.
The exception was overruled and that ruling is assigned as error.
The averments of fact are that appellee was a passenger, that the car-was derailed, overturned, and that injury therefrom resulted in manner and to extent stated.
These things are alleged to have occurred while the train and road were-under the exclusive control of appellant’s servants, and through the negligence of itself or employes.
The pleadings are not required to be broader or more specific than the evidence is required to be to establish a given fact necessary to a recovery, and in this class of cases it would be frequently difficult, if not impossible, for a passenger injured through a derailment to specify with particularity the facts which were the immediate cause of the accident.
As said by one of England’s most distinguished judges, “ when the-breaking down or overturning of a coach is proved, negligence on the part of the owner is (may be) implied; he has always the means to rebut-this presumption if it be unfounded, and it is never incumbent on the defendant to make out that the damage in this case arose from what the law considers a mere accident.” Christie v. Griggs, 2 Campb., 79.
“ The fact that the car runs off is evidence of defect or negligence somewhere, and when the track and the cars are under the exclusive control of the defendants it has been held evidence of negligence sufficient to charge them, in the absence of any explanation showing that the accident happened without fault on their part. Le Barron v. East Boston Ferry Co., 11 Allen, 312; Cooper v. London & Brighton Ry. Co., 5 Q. B., 747. It is not incumbent on the plaintiff after proving an accident, which implies negligence to go further and show what the particular negligence was when from the circumstances it is not in his power to do so.” Feital v. Railway Co., 109 Mass., 405.
This rule seems well established by authority, and is grounded on reasons which commend its application in the ordinary transactions of life. Addison v. Gay, 11 Pick., 106; Carmanty v. Railway Co., 5 La. Ann., 704; Grinde v. Railway Co., 42 Ia., 376; Railway Co. v. Mathias, 50 Ind., 68; Railway Co. v. Selby, 47 Ind., 479; Thomp. on Carr. of Pass., 547; Railway Co. v. Brinker, 68 Texas, 502.
The evidence of two witnesses tending to show that the derailment resulted from the spreading of the track, caused by the want of support, from ties, some having been burned, was objected to on the ground that, there was no pleading under which the evidence could be-introduced, but,.
This cause was tried without a jury, and over the objection of appellant a witness not shown to be an expert was permitted to state his belief that the accident was caused by the burning of the ends of cross ties, which left the rail without support. In the same connection the witness stated that he examined the track and must be understood to have said that he saw where ties had been burned and the rail left without support. There was other evidence to the same effect, as well as evidence tending to show that the car ran some distance after derailment before it was overturned, and that the air brake was so out of order that it could not be used. The court found “ that the accident was caused by the spreading of the rails or track, which was caused by burnt ties, and further that there was no air brake that could be used.”
If it was improper for the witness in connection with his other statement to give his opinion as to the cause of the derailment, we are of the opinion, in view of the fact that the cause was tried by the court and in view of the express finding, that no injury resulted from the admission of the evidence.
Appellant alleged that the injuries to appellee were aggravated by his own failure to use proper care, and that the court erred in not making a finding on that issue. Ho request was made for such a finding, but had there been we do not see that there was any evidence from which the court could have found that appellee in any respect had failed to use «such care as a prudent man would under the circumstances.
It is urged that the findings are not supported by the evidence and that the judgment is excessive. There was ample evidence to sustain the findings, and appellant brought no witness whose duty it was to keep the track in order or to see that it was kept in order to prove that the ties were not burned as stated by the witness introduced by appellee, but contented itself with evidence less direct to show that the track was in good order.
Several physicians testified in the case as to the character of the injuries received by appellee and there is some conflict in their evidence, but there was evidence which authorized a finding that appellee was seriously injured, and we can not say that a judgment for twenty-five hundred dollars is excessive.
The judgment will be affirmed.
Affirmed.
Delivered June 11, 1889.
