Fort Worth daily gazette. (Fort Worth, Tex.) 1882-1891, 1888-12-03

NJ! 3B9;tSsssS ~ q GteenVllle
TILsS D. .21< R.ilxay and J. F
{" {. !; !:
- - F3A, OConnor & Co. to
S/& "A S recover damages
s1I5s.-, aA El aIE1 for personal in
A&}E AsS&sA;83 EN juries received on
IN $MYJxzsAf ~ account OF the al.
Sg2SSSg,1yA31 ~ ltged negligence
csAEJesS .SSs OF appellants. J
F. O'Connor & Co. had contract with
the Dallas ana G:een7ille Railway to
build its road between D.!las and Green
vile The track crossed public road
whe:e the il Try occurred. It appears
inst appellee crossed where the railroad
intersected the public rokd early one
morning, and when he crossed noticed
the hands laying track short distance
east Of the Intersection Of the two roads
At the intersection there WAS 0
cut about seven feet deep
for the roadbed, which was
approached by steep incliues upon either
8 ds in order to facilitate the passage OF
persons and vehicles along the dirt road.
About ~ O'Clock in the day appellee re-
turned He saw the trscklayirg machine
about 800 yards southwest Of the place
Of intersection. Thinking that the track
laying crew had fixed the crossing for the
passage of vehicles, after locking his
wagon, without stopping to inspect the
crossing, he started ACROSS. There WAS
Q ditch on either .ide of the track, and no
crossing save few loose plapks laid
did not discover this state OF facts, how
ever, until 1t was impossible for
him to stop. TIE wagon ran down forci-
bly, striking the crossties and railing
throwing appellee out OF the wsgon, he
striking the cross-ties and iron railing on
his head, whereby the sight Of one OF his
eyes WAS destroyed, his spinal column
Sffected and otherwise seriously tnd pers
msnently injured. He brought this suit
against the Dallas snd Granville Rail-
way and the contractor who was
laying the trMk j. F. O'Con-
nor & Co. The railway coma
pany prayed in the event of recovery by
appellee sgalnst them that they recover
sgairst O'Connor & Co. Judgment for
appellee against b 9TH parties and for the
railroad against O'CoEror & Co. l. An
assignment OF error thss the court erred
in refusing q special charge cannot be
considered, when the record declares
the fact that four special charges
we're asked, each presenting q
distinct proposition. 2. Where 8
portion OF the charge, though in tie
abstract erroneous, does not effsct 0 ms
terisl issue in the case, 1t is not revers-
ible error. The degree of prudence re
quired of appellee in approaching the
crossing was ordinary care. 4. A suffl
cient time had elapsed when the accident
occurred for appellants to restore the
crossing. 5. The appellee might properly
presume that appellants lad pelf olmed
their legal duty, and that the crossing
had been restored. 6. The court did not
err In charging the jury that if they found
for appellee az iinst the railway company,
and also found that the irj1ry resulted
from the negligence of the contractors in
falling to restore the road, they should
fad in favor OF the railroad sgainst the
contractors. 1t being shown that the con-
trs ctors had contracted to keep the pub
lie roads pssssole for the public. No En-
ror. Affirmed Gaines,J.
Gull, Colorado and Santa Fe Railway
vs. Ell Williams; appeal from LampasAs.
Suit by appellee for damages caused by
being thrown from 9 handcar while in
the employ Of appellant as section
hand. Appellee alleged in lis petition tn 1t
he was thrown from the hsndcar by rea-
son Of its bsing too light and frsil for the
purpose for which II was used. The ap-
pellee testifl I'd that while he and his co .
isborers were propeliSDg the car, In COM
pany with two other crews on similar
cars, without spy discespabls cause the
car lef. the track and he was thro Rn Of
and greatly Injured He testlfias that this
WAS new brand of haudcaTs; that they
had o 2ly been using them two weeks; that
he did not know the same YVES too light
for rsage until after the accident cccure
red; thst the cause CT the accident was
the lightness Of the car. One witness OF
appellee after corroborstiDg appellee az
TO other points said the car was too light
for us2ge SIS 6 handcsr and that he knew
1t the first time he saw Il. A number Of
Witnesses for appellant ID tbst the
handcar ques' N, which wss "Snef-
field" car, WAS the best class of hsndcsrs
made; thst they were 10 use ON appel.
l2nt's railway and on many otter rail.
ways; that this make OF cars we're less
liable TO accidents than the old styles OF
handcaIs. The witnesses testIfying for
appellant were experienced rAilrosd mer,
and shown to be experts in their profess
sion. Held: The testimony 81 o siog
that plaintiff knew, or should have. known,
OF the lightness of the car snd 1t not sui
fciently appearing that 1t was defective,
the verdict was without evidence OF
proper care on the part of appellee and
should have been set sside. Reversed
and remanded. Walker, j.
j. M. Draper, administrator vs.. Jane
Hiilen ct al; appeal from Rusk. l. In
the at, Jercs of en- assignment OF errors,
only an error in law apparent upon the
face OF the record will be considered.
9. Ia the absence OF statement OF facss,
this court cannot know what testimony
was passed upon by the curt below in
arriving st It's ldgment. Nd assignment
Ct errors nor statement OF facts and no
error apparent Of record. Affirmed.
Walker,J
Missouri Pacifl: Railway vs. James
Sauford; appeal from Smith. sAR1an0I
damages, sc.uel and exemplsQ for u:
jarles sustained by the sppslle9 kxem
plsry damages were asked on the gFegf
that the appellants road bed was iH6t
CT repair; that IL was notfEisly