T. & N. O. R. R. Co. v. Galveston County
| Decision Date | 10 March 1943 |
| Docket Number | No. 2451-8005.,2451-8005. |
| Citation | 169 S.W.2d 713 |
| Parties | T. & N. O. R. R. CO. v. GALVESTON COUNTY. |
| Court | Texas Supreme Court |
Baker, Botts, Andrews & Wharton, of Houston, and Armstrong, Cranford, Barker & Bedford and W. E. Cranford, all of Galveston, for appellant.
Charles H. Theobald, Co. Atty., and Emmett F. Magee, Asst. Co. Atty., both of Galveston, for appellee.
In 1908, Galveston County, three railway companies and an interurban company made a contract for the construction of a causeway and a drawbridge to connect Galveston Island with the mainland. The structure was to be occupied by a public road of the county and by the tracks of the railway and interurban companies. The county was to do the work under the direction of an engineer selected by the other parties, with the advice and consent of the county. Up to a cost of $1,400,000, the railway companies were to pay a half and the interurban company and the county each a fourth. Beyond that, the cost was to be borne by the county, which was to have the title, but the other parties and their assignees were to enjoy a lease for 999 years on that part of the causeway not used by the county's highway. The portion to be used by each party was specified in the contract.
About the middle of the causeway was the drawbridge, across which ran the county's highway and the tracks of the railway and interurban companies. It was pivoted on the mainland side of the causeway, and could be lifted to permit seagoing vessels to navigate the channel, which otherwise was blocked by the causeway. When the drawbridge was up, the causeway from Galveston Island had an unobstructed opening into the channel.
Under the terms of the contract, the railway companies were to maintain, repair and operate the drawbridge and the cost was to be prorated among them, the interurban company and the county. It was agreed that "the officers, agents and employees of the steam railway companies * * * engaged in the work of * * * operating the draw-bridge as provided in paragraph (e) hereof, shall be deemed and treated as joint employees of the parties to this agreement." Then came the provision which is the subject matter of this suit. It was that neither the railway companies nor the interurban company "shall be liable for any injury to person or damage to property which shall occur in connection with the use or attempted use of the drawbridge, or in the draw space, when the draw-bridge may be open, when the person injured or the property damaged shall be in the course of travel or transportation over the county road, and the county will indemnify and save harmless each of the other parties hereto from any such liability." (Italics ours.)
By special act of the legislature, passed in 1909, the contract, quoted in its entirety, was expressly ratified, approved and confirmed, the emergency clause reciting that "the public interests require the immediate construction of the Causeway across Galveston Bay in Galveston county." Section 4, S.B. No. 187, Special & Local Laws, Regular Session, 31st Leg., c. 87, p. 589.
Shortly after midnight, March 7, 1936, three men were traveling the public road on the causeway in an automobile going from the island to the mainland. The drawbridge was open, and the car plunged off the causeway into the waters of Galveston Bay, killing two of the men and seriously injuring the third. Identical suits were thereafter filed by the injured man and the next of kin of the dead men against the Texas and New Orleans Railroad Company, assignee of one of the three railway companies which executed the foregoing contract, based on allegations that the defendant was operating the drawbridge when the tragedy occurred, had raised it just before the three men reached it and had negligently failed, in several particulars, to give them any warning that it was then open.
The railway companies contended that the liabilities asserted in the three suits were covered by the indemnity clause above quoted. Claiming that the provision was unconstitutional, Galveston County declined to defend the suits. The injured man's case was tried and judgment was rendered for the railway company. After the county and the railway company had made a written agreement, in which each reserved the right to sue the other for the...
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