129 S.W. 342 | Tex. | 1910
The Texas Pacific Railway Company owned and operated a track in the city of Texarkana, which crossed the track of the Cotton Belt Railroad at a certain point in the city. The Texas Pacific track runs on a curve for some distance before and after crossing the Cotton Belt Railroad. By the side of and near to the track of the Texas Pacific Railroad was a beaten plain path made by pedestrians who had walked there for considerable time, in fact without any interference or molestation on the part of the railroad, and it is not denied by the plaintiff is error that Endsley was a licensee upon the said pathway at the time of his injury. Endsley was a mail carrier and delivered the mail on foot in that part of the city. On this occasion he had been out delivering mail to the office of the Cotton Belt Railroad and was returning to the city. He looked back and saw a train of cars approaching him from the rear and stepped three or four feet from the track so as to be out of the way of the cars as they were passing. He stopped and was looking at the car wheels as they run over the frog on the track when something struck him on the back part of his head and knocked him down, inflicting a wound of some length on his head. He testified that when he got up he saw on a car, which had passed him and was some four or five car lengths away, something swinging out from the car; he *436 did not know what it was, but it looked like the door of the car. The train was moving about six or eight miles per hour. Another witness who saw the accident testified that he saw Endsley when he was knocked down and that the cars passed near to him on the track but he did not see anything swinging out from the cars. It was proved by this witness that if the door of a box car was loose at the bottom and fastened at the top it would project at the bottom seven or eight inches and on a curve would be inclined to project further than that. There was no other evidence tending to prove that there was a loose door upon any car in that train, nor was there any other proof which tended to show that the injury to Endsley was produced by the negligence of the Texas Pacific Railroad Company or any of its servants.
The evidence of the manner in which the injury occurred is quite meager, but if we concede that Endsley's statement is correct we yet have the question, is it sufficient as a matter of law to support the judgment?
The fact that the injury occurred and that such injury resulted from a defective condition of the defendant's car is not sufficient to establish the necessary fact that the railroad company was negligent in permitting the door to be in that condition. Gulf, C. S.F. Ry. Co. v. Kizziah,
In the Barrager case, above cited, damages were claimed for an injury received by a brakeman through the pulling out of a draw-head, and this court said: "To say that the burden is upon the servant to show negligence upon part of the master when he seeks to recover damages for injuries resulting from defective machinery, is but to announce the elementary proposition that the plaintiff must prove his case; and we are of opinion that negligence on part of a railroad company is not to be inferred from the mere fact that a draw-head has become detached in the operation of moving the train. Mobile O.R. Co. v. Thomas,
The evidence does not disclose any fact which would tend to show when or how the defect in the door of the car occurred, nor does there appear to be any evidence as to ownership of the car, how long it had been in the yard, or whether it had been in the possession of the railroad company sufficient time for the defect to be discovered when Endsley was struck, nor any fact from which a jury could determine that in the exercise of ordinary care the railroad company should have discovered the defect before the injury occurred. The fact that cars were being pushed in the yard would indicate that they had just been brought in and may have come from another road, or the break in the door may have occurred while it was out on the road. If the maxim, res ipsaloquitur, be applicable to this character of case, the evidence must suggest the character of the negligent act — it is not sufficient that it may raise a suspicion of negligence of some kind. *437
The case of Missouri, K. T. Ry. Co. v. Scarborough,
It is ordered that the judgments of the Court of Civil Appeals and District Court be reversed and that judgment be here rendered for plaintiff in error.
Reversed and rendered.
