No. 13,005.

#### William Jones vs. The Texas and Pacific Railway Co.

Syllabus.

It is not sufficient ¡or a plaintiff, seeking damages o¡ a railroad company for personal injuries, to show that a particular appliance of the company was in bad condition; he must establish the fact that the injuries were occasioned by the same.

ON APPEAL from the Oivil District Court for the Parish of Orleaos. Theard, *J.*

*Ambrose Smith*and *T. M. Gill*for Plaintiff and Appellee.

Howe, *Spencer & Cocke*for Defendant and Appellant.

Argued and submitted May 20, 1899.

Opinion handed down May 29, 1899.

The opinion of the court was delivered by

Nioholls, C. J.

This was a suit instituted in the Civil District Court to recover the sum of $10,070 for alleged personal injuries.

The substantial allegations of the petition are that the plaintiff was employed by the defendant as brakesman; that on or about the 14ih day of -October, 1895, at ten o’clock p. m., while in the discharge of his duty the plaintiff attempted to descend a freight ear attached to one of the trains of the defendant by means of the hand holds or grab-irons thereon, the said train being then in motion, that the said handhold gave way and precipitated petitioner to the ground, where he ■came in contact with cross ties of the said railroad and had his right leg and ankle badly and seriously bruised, twisted and broken.

The petition further alleges, that as a result of the said fall, petitioner suffered great bodily and mental pain and still suffers the same, and has been rendered incapable of pursuing his occupation as brakesman, in which occupation he earned wages amounting to sixty dollars a month.

It is further alleged that the said injuries were caused by net *1248fault or negligence on the part of the petitioner, but were occasioned and caused solely by the fault and negligence of the defendant; that the said hand-hold was defective, old and insufficient to the knowledge of said railway company, and its agents, and that petitioner had no knowledge or notice of the said defect. The answer of the defendant consisted of: (1) A general denial. (2) An admission that the plaintiff was in defendant’s employ, coupled with a special denial that he was injured by any negligence or want of care on its part or on. the part of anyone for whom it was responsible; a denial that the plaintiff was injured by reason of the defect of any car belonging to respondent, or if injured by any such defect (which was denied) thou respondent denied that it had any knowledge of the same and averred that plaintiff assumed by virtue of his employment, the risk thereof, if any such defect did in fact exist. (3) Defendant averred contributory negligence on the part of the plaintiff.

Opinion.

There is no doubt as to the fact that the plaintiff was severely injured at Whitecastle, while in the employ of the defendant company,, but the only person who testified as to the circumstances under which these injuries were received was the plaintiff himself.

The account given by himself is, that being a brakeman on the-train in the discharge of his duty, he was descending, about ten o’clock at night, one of the side ladders which are fastened onto the cars, when the end of one of the rounds of the ladder pulled out from the side of the car to which it was attached, and dropping down, caused him to fall with violence to the ground and to break his ankle.

The claim made is that the fastening to the car was defective and - the defendant company negligent in not providing safe appliances.

The only attempt at corroboration of this statement is through the testimony of one Robinson, who declared that as he was walking along the public road which runs parallel to the railroad track, he saw the ■ plaintiff (lantern in hand) fall to the ground and in going to his assistance he was then told by him that the hand-hold “had pulled out and had caused him "to fall and injure himself.”

This statement was permitted to be introduced as part of the *“res*gestaeRobinson said that he was unable of himself to say how the-plaintiff came to be hurt.

*1249As against this version of the facts, Barksdale, the conductor of the freight train, and Brown and Cunningham, brakemen thereon, testify that before the train reached Bayou Goula, fhé next- station, three-miles off, the plaintiff told each of them that he had jumped off thu ear and hurt himself and that on reaching that' station they had examined the car and found the ladder and the “hand holds” thereto-intact. The ear inspector at Baton Rouge Junction testified to having- made a similar inspection at that point with a like result.

There was evidence to- show that the “draw head”.of the particular-car which the plaintiff was upon at the time of the accident, had: pulled out that morning at Gouldsborough before the train left New Orleans, but that particular fact carried with it no significance as the “draw head” had nothing whatever to do with the side ladders.

The draw head might well pull out and the ear be otherwise hr: thorough condition, and the car inspector at Gouldsborough testified: that sueli was the fact, that he had fully inspected it before Restarting- from that point.

Under this condition of the evidence we think the judgment appealed from is erroneous.

Eor the reasons assigned, it is ordered, adjudged and decreed that, the judgment appealed from be and the sanie is hereby annulled,, avoided and reversed, and it is now ordered and adjudged and decreed! that plaintiff’s demand he rejected with costs in both courts.