Case No. 5664 | Tex. | Apr 16, 1886
The appellant submits this ease upon a single proposition, which is to the effect that the injury complained of was not brought about through the negligence of the railway company, and that this is shown by nncontradicted testimony. The argument of appellant’s counsel is directed solely to the evidence as to the condition of the wheel, the breaking of which is alleged to have been the proximate cause of the accident. But the petition also alleges that other causes contributed to bring it about, viz.: the absence of sufficient air brakes to control the stopping of the train, the improper speed at which it was running at the time of the accident, and the bad condition of the road-bed, rails and cross-ties at the place where the injury happened. The wheel may have been sound, yet, if the other circumstances enumerated above caused it to break and derail a portion of the train, and produce the injury complained of, it must be held that it was brought about by the negligence of the appellant company.
The evidence seems nncontradicted that the schedule rate of speed over this part of the road was four miles an hour; but that on this occasion the train was running at the rate of from sixteen to twenty miles per hour. Also, that the air brakes were defective, and that but for these defects the engineer might have stopped the train, instead of allowing it to run at as great a rate of speed after the wheel was broken as before, notwithstanding the bell rope was pulled as a signal for him to stop the train. It was also shown by a witness, whose testimony, it is true, was contradicted, but which we must regard as correct for the purposes of this appeal, that the track was, at the time, in bad condition; that the rails were of old iron and battered up, the ties rotton, and the road-bed rough and uneven, and that for this reason the schedule time was reduced over this part of the road to four miles an hour. Prom this evidence, it would seem that it was negligence of a high degree to run the train at such a great rate of speed, on so defective a track, with no means of checking its velocity, and that this carelessness on the part of the company contributed in a great measure towards the fracture of the wheel, and to the injury that proceeded in part from this cause.
But it is contended by the appellant that as the proper officers had made all due and careful inspection of the wheel a short time before the accident, and had been unable to detect any defects in it, the company cannot be charged with negligence, though the subsequent fracture of the wheel disclosed a flaw which caused it to give way, and which must have existed at the time of its inspection. Admit this to be the law for the purposes of the present case, yet it cannot benefit the plaintiff, because it is not an uncontroverted fact that a full and careful inspection was made. The parties who made the inspection testified that the only test as to the soundness of the wheel which they used was to look over it very carefully. It is apparent from the appellee’s testimony that the defect in the wheel was one that could have been discovered by a careful outside inspection. The breaks or flaws extended to the rim, and were filled with dirt, grease and rust,, showing their exposure to the air, and other influences which could not have reached them had they been protected by a sound and uninjured surface, and that the fissures in the wheel were large enough to admit such foreign matter.
A witness for the company testified also that' the defects could not have been discovered beforehand, however careful the inspector. In addition to the contradiction to which we have already alluded as confronting this evidence, it is rendered of no avail by the fact that the witness testified as to a wheel which he said had no old breaks in it whatever. The same may be said as to the testimony of the inspectors. If the wheels had no defects, there were, of course, none to discover by inspection.
In any view which can be taken of this case, it cannot be said that the uncontroverted evidence shows that the injury to the appellee did not happen through the negligence of the appellant company, but there is abundant proof to the contrary.
There is no error in the judgment and it is affirmed.
Affirmed.
[Opinion delivered April 16, 1886.]