Cases argued and decided in the Supreme Court of the State of Texas, during the latter part of the Austin term, 1884, and the Tyler term, 1884. Volume 62. Page: 319
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1884.] M. P. R'Y Co. AD I. & G. N. R'Y CCo. v. CLLIER. 319
Opinion of the court.
APPEAL from Smith. Tried below before the Hon. Felix J.
MIcCord.
This suit was instituted by the appellee, T. B. Collier, to recover
of the appellants the sum of $10,000 damages for personal injuries
sustained by him while a passenger on the International & Great
Northern Railroad, which it was alleged was being operated by the
Missouri Pacific Railway Company, caused by the car, in which
plaintiff was seated, leaving the track and turning upside down from
an embankment, on the night of the 30th of January, 1883, whereby
it was alleged that plaintiff's back and spine were injured, and he
received numerous other bruises.
To this there was a general denial by defendants, and a plea that
the wreck was one of those inevitable accidents against which human
foresight could not provide, in that the train was properly equipped
and manned, and was running at a proper rate of speed; that the
road-bed was in good condition and repair, but that an apparently
sound iron rail broke, from the effects of cold making it brittle, and
threw the car from the track; that against such accidents as this no
known precautions could provide. Upon the trial judgment was
rendered for plaintiff for $4,000, from which this appeal was prosecuted.IWAittalker & Bonner, for appellants, cited, as to proper service of
notice of taking depositions: R. S., arts. 1223, 2219.
As to liability of railroad for inevitable accident: R R. Co. v.
Halloran, 53 Tex., 46; R. R. Co. v. Fowler, 56 Tex., 452.
Clilton, Robertson & Finley, for appellee, cited: Weeks on Depositions,
§ 269; Spaulding v. Ludlow, 36 Vt., 150; Alexander v. Strong,
38 Ala., 326; Abbott's Trial Evidence, p. 589; 1 Greenl. Ev., § 108;
Transfer Co. v. Flint, 13 Wall., 3.
WEST, ASSOCIATE JuSTICE.- Under the facts of this case, as disclosed
by the record, the district court committed no error in declining,
at the instance of the appellants, to suppress the depositions
of the witness EHowell and others.
We think that under the facts of this case the service of the notice
and interrogatories on the local agent of the appellants at Tyler
was sufficient, and was good legal service.
The petition avers and the evidence shows that, as a matter of
fact, the Missouri Pacific R. Ri. Co. had charge of and was in fact,
at the time of thi service, lawfully operating the I. & G. N. . R.
Co. in Texas.
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Texas. Supreme Court. Cases argued and decided in the Supreme Court of the State of Texas, during the latter part of the Austin term, 1884, and the Tyler term, 1884. Volume 62., book, 1885; Austin, Texas. (https://texashistory.unt.edu/ark:/67531/metapth28512/m1/341/: accessed May 3, 2024), University of North Texas Libraries, The Portal to Texas History, https://texashistory.unt.edu; .