H. & T. C. R'y Co. v. E. J. Pinto, 60 Tex. 516

Delany, J. Com. App. 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. Best, the night superintendent, thought that he had warned appellee about the ditches, as such had been his habit with new employees generally.

He further states that just as the plaintiff was making the second attempt to couple the cars, he “ told him to watch out for the ditch and the dead-woods. Plaintiff answered, I am; Immediately afterwards the accident happened.” He also states that the plaintiff had worked in the same part of the yard on the previous nights. Another witness, who had worked in the yard, states that the plaintiff was not working near the ditch on the two preceding nights, but in another part of the yard.

He states, also, that another ditch crossed the track near the one into which the plaintiff stepped; but the other one was covered with plank at the place where it crossed the track, but this one was left open. He called the attention of the

section boss to this open ditch, but does not recollect whether it was before or after the accident. Another witness, after describing the condition of the ground at the time of the accident, says that in a few days after it occurred the defendant “began to fill up the yard; that is, box up the ditches and fill in between the ties.” There was a considerable degree of conflict in the testimony as to the condition of the road-bed, some stating that it was very bad, others that it was as good as any they had ever known. 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.]