Wood v. St. Louis Southwestern Railway Co.

107 S.W. 563, 48 Tex. Civ. App. 328, 1908 Tex. App. LEXIS 443

• Court: Court of Appeals of Texas
• Decided: January 4, 1908
• Status: Published

Opinions

STEPHENS, Associate Justice.

Plaintiff in error, while en-

gaged in loading a wagon with lumber from one of the cars of defendant in error in its yards in Fort Worth, sustained personal injuries for which he sought to recover damages, charging defendant in error with negligence in not furnishing him a better place to load his wagon. The petition discloses that an excavation three or four feet wide, about twelve inches deep and about one hundred feet long had been made parallel with the railway track and near the ends of the cross-ties, and that in making this excavation the dirt to a depth of about twelve inches had been piled up adjacent to the excavation, the effect of which was to prevent a wagon from being placed as near the car as usual for loading the same and to throw it in an uneven position, to which the negligence is ascribed. It is .further alleged that the. yardmaster of the railway company prom ised the plaintiff in error, who was fully aware of the objectionable situation, that he would soon place the same in better condition, inviting him to go ahead and use it as it was, which plaintiff in error did. The railway company was engaged in improving its yards and to that end the excavation had been made. In attempting to load his wagon plaintiff in error alleges that he was standing on the wagon and the car, “unloading and handling the said lumber from the said car to said wagon,” and that “owing to the said wagon being so far from said car and in an uneven position and condition caused by said condition of said track, excavation and ground adjacent' thereto, the plaintiff lost his footing and was suddenly and violently thrown from his footing and against side of said car, and the piece of lumber then and there in the plaintiff’s hands was thereby thrown and caused to fall on and against plaintiff’s person, and plaintiff was then and there and thereby seriously and permanently injured.”

The court sustained a demurrer to the petition, and, the plaintiff declining to amend, dismissed the suit, and from that judgment this appeal is prosecuted.

It seems quite clear to at least a majority of us that the plaintiff had no case and that it was properly disposed of by demurrer. The situation was well known and perfectly obvious to plaintiff and the car and wagon were both standing still when, in the effort to transfer the lumber from the car to the wagon, he seems to have lost his balance and tumbled off. Evidently a little care on his part would have prevented this, although it is alleged that he was not guilty of negligence. The injury was due either to accident or negligence on the part of the person injured. It would lead to interminable litigation for the courts to seriously entertain a claim for damages under such circumstances. The judgment is therefore affirmed.

Affirmed.