207 S.W. 555 | Tex. App. | 1918
It is conceded that the train to which Lester was attached was at the time bound for a point in Texas, and was made up of cars used for both interstate and intrastate traffic. The negligence relied on was the presence of a defective coupler on one of the cars standing on the side track at Glocester, which caused it to become detached when the train crew were engaged in "respotting" them.
The case was submitted to a jury upon the theory that the appellant's train was at the time of the injury engaged in interstate commerce, and liability, if any, was to be measured by the common-law rule of compensation. Counsel for the appellant insists that, while the train to which Lester belonged was in a general way engaged in interstate commerce, yet at the time the injury occurred Lester was performing a service purely intrastate and local, and for that reason the federal Employers' Liability Act (Act April 22, 1908, c.
The court's charge on contributory negligence was substantially as specific as was necessary to present the facts upon which that defense was predicated, and there was no error in refusing the special charge requested by the appellant.
It is also contended that the defective coupler was not the proximate cause of the injury. The appellant's evidence tended to show that the coupler was not in fact defective; that the side track where the train was moved was very uneven; and the argument is made that its rough condition, and not a defect in the coupler, caused the cars to separate. The court submitted that issue to the jury, and directed them to return a verdict for the appellant in the event it was found that the rough track, and not a defective condition of the coupler, caused the separation. The verdict of the jury involves the finding against the appellant's contention, and the state of the evidence is not such as to require us to set that finding aside. According to the evidence offered by the appellee, his injuries were both painful and serious, and we cannot say that the verdict is excessive.
The judgment is affirmed.