70 Tex. 226 | Tex. | 1888
This suit was brought by appellants, Sofora , Pilkinton, widow of Frank Pilkinton, and Ella, Ellis, Eva and John, minor children of Frank Pilkinton, to recover of appellee fifteen thousand dollars damages resulting to them from the death of Frank Pilkinton, which it was alleged was ■ caused by the negligence of appellee.
The deceased had been employed by appellee as a brakeman but a few days when he received the injuries which caused his death, while assisting in making what is called a “running or flying switch,” which feat is described as being performed in the following manner: The train is put under such headway at sufficient distance from the switch that the train may be uncoupled, and, by running faster, pass the switch far enough ahead of the rear portion of the train to allow the switch to be thrown and the rear portion of the train to enter it. The conductor in charge of the train uncoupled the cars between a flat car at the rear of the front portion of the train, and a box car at the front of the rear portion of the train. By direction of the conductor the deceased took position on the flat car at the rear end of the front portion of the train, for the purpose of holding it with the brake after it passed the switch, and the conductor uncoupled the cars and climbed upon the top of the box car at the front end of the rear portion of the train to i “ride” that portion of the train into the switch, When the
The conductor, who is the only witness who testifies to the manner in which the deceased received his injuries, says that after the cars were uncoupled he signaled the engineer to move off with the front portion of the train, and then climbed upon the top of the box car, when he looked towards deceased and' saw him “start or stumble” towards the brake and fall from the car on the track.
Plying switches were expressly forbidden by rule adopted by appellee for the government of its employes, but it was the custom of employes to disregard the rule and make flying switches to save time. The company furnished employes with necessary appliances for switching cars in a manner much less dangerous than the flying switch. Employes disobeying the rule prohibiting the flying switch were punished by discharge, whenever such act of disobedience came to the attention of appellee’s general officers. The deceased had had but little ■experience as a brakeman, and it does not appear whether or not he knew that the running switch was more dangerous than switching by other modes. It was appellee’s custom to furnish its employes with the rules prescribed for their government, but it does not appear whether or not the deceased was informed of the rule prohibiting the flying switch.
"Under this state of facts the court instructed the jury to return a verdict for appellee, in which it is contended that the ■court erred, because “the pleadings and evidence showed a .case requiring of the court a submission of the facts to the jury by appropriate instructions; and the jury would have been warranted, upon such submission to them, in finding a verdict for the plaintiff.”
In accepting employment as brakeman, the deceased assumed that he possessed the necessary qualifications, and was ■competent to perform all service incident to such employment. He took the position subject to all risks pertaining to that service, and if he knew that the flying switch was prohibited by .a rule of the company, established for the safety of employes, and he received his injuries while acting in willful disobedience to such rule, and such act of disobedience was the proximate cause of his injuries, there could be no recovery in this
The evidence tends strongly to show that the injuries which caused the death were the result of an accident incident to the service of a brakeman. It appears that he was not thrown from the car by the sudden start given the front portion of the train to draw it rapidlyaway from the rear portion, for at the time he fell from the car the front portion of the train had . gained a distance of about sixty feet from the rear portion. This must have been some moments after the immediate effect of the jerk produced by the sudden start. The only witness who seems to have seen him at the time he fell says that he “started or stumbled toward the brake and fell from the car.” It seems probable that the fall was the result of an accident, rather than the sudden starting forward of the train. But if it was admitted, that the injuries were caused by the sudden start of the train, no recovery could be had in this action, for it is evident that the injuries would not have occurred but for the misconduct or negligence of Pilkinton’s fellow servants. (Dallas v. Railroad, 61 Texas, 201; Robinson v. Railroad, 46 Texas, 540; Railroad v. Faber, 63 Texas, 344; Railroad v. Scott, 64 Texas, 549.)
To authorize a recovery for injuries sustained by an employe through the negligence or incompetency of a fellow servant, it must be alleged and proved not only that the fellow servant was negligent or incompetent, but that the employer had not exercised reasonable and proper care in the selection of the servant by whose negligence or incompetency the injuries were caused. (Wood’s Master and Servant, sec. 419.)
On the trial appellants" proposed to prove by the witness , Sofora Pilkinton, as part of the res gestee, the substance of:a statement made to her by her husband Frank Pilkinton, three hours after he received the injuries, as to how the injuries occurred. On objection, this testimony was excluded, and appellants contend that this was error.
As to what is res gestee depends much upon the circumstances of each particular case. The doctrine is based on the presumption that declarations made at the time of the act, or
The rule is very latitudinous, and its application must be left largely to the judicial discretion of the trial court. Where the circumstances of the case render it probable that a statement offered as res gestae is the result of premeditation or deliberate design to effect a certain purpose, it should not be received. It does not, however, appear, from the bill of exceptions what statement the deceased made to his wife as to the manner in which he received his injuries, or that his statement differed in any particular from the testimony of other witnesses. Without this we can not determine that the ruling here complained of was prejudicial to the rights of appellants.
We think there is no error in the judgment of the court below, and that it should be affirmed.
Gel
