Galveston, H. & S. A. Ry. Co. v. Davis

Decision Date04 October 1893
Citation23 S.W. 301
CourtTexas Court of Appeals
PartiesGALVESTON, H. & S. A. RY. CO. v. DAVIS.<SMALL><SUP>1</SUP></SMALL>

Appeal from district court, Bexar county; W. W. King, Judge.

Action by William Davis against the Galveston, Harrisburg & San Antonio Railway Company for the death of plaintiff's son. From a judgment for plaintiff, defendant appeals. Reversed.

Upson & Bergstrom, for appellant. Chas. W. Ogden, for appellee.

FLY, J.

This suit was instituted by petition to recover actual damages in the sum of $50,000, which appellee, who was plaintiff below, claims to have sustained in the death of his son, Edward Davis, which resulted from one train of defendant's cars being negligently run into by another of its trains October 10, 1886. The plaintiff, in his petition, charges that the defendant, as was its duty to do, failed to furnish the usual and customary caboose car having end doors with glass panes, and an outlook on top, but in its stead attached an empty freight car, with sliding side doors, but with no end doors, or outlook on top of said car, from which an approaching train could be seen, wherein plaintiff's son, in the performance of his duty as rear brakeman, was riding at the time of the accident, and could not see and avoid an approaching train. That said trains were negligently run from their starting points, only 10 minutes apart. That the train which ran into the train upon which plaintiff's son received his fatal injuries was in charge and under the control of a reckless, careless, and intemperate and utterly incompetent conductor, one Samuel Greene, and an inexperienced and incompetent engineer, one Thomas Henry, which defendant well knew, and of which plaintiff's son had no knowledge; and that by reason of the carelessness, intemperance, and incompetency of said conductor, and the inexperience and incompetency of said engineer, said train under their control was by them negligently run into the train upon which plaintiff's son was employed as brakeman with such force and violence as to inflict upon him, said son, injuries from which he died the same day.

Defendant answered by its first amended original answer by general denial, and specially denying that the death of plaintiff's son was caused by a collision of any trains of cars owned or operated by it, or by reason of the carelessness, negligence, or intemperance or incompetency of an employe of defendant, or any person under its control, or that plaintiff's said son or any one was in its employ on the line of said railroad at the time of the injury complained of. Defendant denies that plaintiff's son was a minor at the time of his employment, or that plaintiff was entitled to his son's services, but avers that he entered into the service of the Southern Pacific Company, wherein his death resulted, representing himself, and the plaintiff also representing him to be, 21 years of age, and fully competent to contract and act for himself, and receive the proceeds of his labor, and that he appeared to be of full age. Defendant avers that the collision set out in plaintiff's petition was an unavoidable accident, caused by a dense fog, rendering the lights on the colliding cars undiscernible, and was one of the risks assumed by plaintiff's son, and incident to his employment, for which the employer was in no manner responsible. Plaintiff filed his exceptions to the denial in defendant's answer that plaintiff's son was a minor, and to the averments in said answer as to plaintiff's son entering into the service of the Southern Pacific Company representing himself to be 21 years of age, and as to the accident being unavoidable, on the ground that the same purported to set up a defense for the Southern Pacific Company, which defendant had no right to make; which exceptions were overruled by the court. The case was tried by a jury, and resulted in a verdict and judgment in favor of the plaintiff, January 31, 1891, for $11,000.

A considerable portion of the evidence in the lower court was as to whether appellant or some one else was responsible, and a large part of the brief of appellant in this court is devoted to the discussion of the nature, purpose, and intent of a certain instrument of writing which was, without objection on the part of appellee, introduced in evidence by appellant. It is as follows, leaving out the preamble, which sets out the names of the contracting corporations, appellant being one of the number: "That the said Southern Pacific Railroad Company, organized and existing under the laws of the United States and the state of California, hereby leases to the said Southern Pacific Company, for the term of ninety-nine years from the date hereof, all of its railroad situated in the state of California, known and designated as the `Southern Pacific Railroad of California,' with all its branches and all railroads now leased by it, together with the rolling stock, telegraph lines, tools, and property of every kind and nature whatsoever now in use upon or in connection with said railroads, and together with all of the appurtenances thereunto belonging, with the right to possess, maintain, use, and operate the said property, and to receive the rents, issues, and profits thereof. That the said Southern Pacific Railroad Company, organized and existing under the laws of the territory of Arizona, hereby leases to the said Southern Pacific Company, for the term of ninety-nine years from the date hereof, all of its railroad situated in the territory of Arizona, and known and designated as the `Southern Pacific Railroad of Arizona,' together with all its branches, and all the rolling stock, telegraph lines, tools, and property of every kind and nature whatsoever now in use upon or in connection with said railroad or branches, and together with all the appurtenances thereunto belonging, with the right to possess, maintain, use, and operate the said property, and to receive the rents, issues, and profits thereof. That the said Southern Pacific Railroad Company, organized and existing under the laws of the territory of New Mexico, hereby leases to the Southern Pacific Company, for the term of ninety-nine years from the date hereof, all of its railroad situated in the territory of New Mexico, and known and designated as the `Southern Pacific Railroad of New Mexico,' together with all its branches, and all the rolling stock, telegraph lines, tools, and property of every kind and nature whatsoever now in use upon and in connection with said railroad or its branches, and together with all the appurtenances thereunto belonging, with the right to possess, maintain, use, and operate the said property, and to receive the rents, issues, and profits thereof. That the said Galveston, Harrisburg and San Antonio Railway Company hereby leases to the said Southern Pacific Company, for the term of ninety-nine years from the date hereof, all its railroads situated in the state of Texas, and known and designated as the `Galveston, Harrisburg and San Antonio Railway Company,' with all its branches, and all the rolling stock, telegraph lines, tools, and property of every kind and nature whatsoever, now in use upon or in connection with said railroad or its branches, and together with all appurtenances thereunto belonging, and all other property now owned, held, and possessed by it, with the right to possess, maintain, use, and operate the said property, and receive the rents, issues, and profits thereof. That the said Texas and New Orleans Railroad Company of 1874 hereby leases to the said Southern Pacific Railroad Company, for the term of ninety-nine years from the date hereof, all of its railroad situated in the state of Texas, and known and designated as the `Texas and New Orleans Railroad of 1874,' together with all of its branches, and all the rolling stock, telegraph lines, tools, and property of every kind and nature whatsoever now in use upon or in connection with said railroad or branches, and together with all the appurtenances thereunto belonging, with the right to possess, maintain, use, and operate the said property, and to receive the rents, issues, and profits thereof. That the said Louisiana Western Railroad Company hereby leases to the said Southern Pacific Company, for the term of ninety-nine years from the date hereof, all of its railroad situated in the states of Texas and Louisiana, and known and designated as the `Louisiana Western Railroad,' together with all its branches, and all the rolling stock, telegraph lines, tools, and property of every kind and nature whatsoever now in use upon or in connection with said railroad or branches, and together with all the appurtenances thereunto belonging, with the right to possess, maintain, use, and operate the said property, and to receive the rents, issues, and profits thereof. That the Morgan's Louisiana and Texas Railroad and Steamship Company hereby leases to the said Southern Pacific Company, for the term of ninety-nine years from the date hereof, its railroad situated in the state of Louisiana, and known and designated as the `Morgan's Louisiana and Texas Railroad,' all the branches thereof, and the rolling stock, telegraph lines, tools, and property of every kind and nature whatsoever now in use upon or in connection with said railroad and branches, and together with all the appurtenances thereunto belonging; also all the steamships, steamboats, tugs, piers, landings, depots, buildings, and all other property, real and personal, now owned, held, or possessed by the said Morgan's Louisiana and Texas Railroad and Steamship Company, with right to possess, maintain, use, and operate the said property, and to receive the rents, issues, and profits thereof. That the said Mexican International Railroad Company hereby leases to the said Southern Pacific Company, for the term of ninety-nine years from the date hereof, all of its railroad, and the branches thereof, situated in the republic of Mexico, known and...

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  • Rober v. Northern Pacific Railway Company, a Corporation
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