60 Tex. 516 | Tex. | 1883
The first four assignments of error are so vague as to amount to a waiver of errors. Eule 26, Supreme Court; 47 Tex., 602. We will therefore consider whether the verdict is sustained by the evidence.
It appears from the testimony that in January, 1877, appellee was employed in the yard of appellant, in the city of Denison, his duties being to attend to the switching, coupling, etc., of its cars. His duties were performed only at night. On the third night after he was employed, while acting under the orders of the night superintendent, he, with a lighted lamp on his left arm, made an attempt to couple the cars of a train, and failing at the first attempt, he advanced with the train, which was moving slowly, and when they again came together he made a second attempt, and in doing so stepped into a ditch which run across the road under the track. He threw out his right hand to save himself from falling under the train, when it was caught between the cars and crushed so as to render amputation necessary. The ditch was about twelve inches deep and from twelve to eighteen inches in width. He testifies that he knew nothing of the presence of this ditch, having nevér been in that part of the yard before, and that he had never been in the yard at all in the day-time. He had been employed many years in similar business at other places, and appears to have been familiar with his duties; was about thirty-five years old.
John B. Wright, the yard-master, testified that the ditch into which the plaintiff fell had been placed there by the section boss for the purpose of giving surface drainage to- the yards. Witness thought the ditch necessary for that purpose; did not think that G. A. Quinlan, the division superintendent, knew of its existence, or had ordered its construction. It was the duty of the section boss to keep the yard and track in proper repair.
Heither Quinlan nor the section boss testified in the case, though Wright stated upon cross-examination that he had seen Quinlan about the yard.
In this conflict of testimony we are not prepared to say that the verdict of the jury was clearly wrong; and taking the case of H. & G. N. R. R. Co. v. Randall as our guide, we cannot say that it was excessive. 50 Tex., 254.
Our opinion, therefore, is that the judgment should be affirmed.
Affirmed.
[Opinion adopted December 14, 1883.]