Missouri Pac. Ry. Co. v. Texas Pac. Ry. Co.

• Decision Date: 05 February 1890
• Parties: MISSOURI PAC. RY. CO. v. TEXAS PAC. RY. CO., (ANDREOLA, Intervenor.)
• Court: U.S. District Court — Eastern District of Louisiana

41 F. 316

MISSOURI PAC. RY. CO. v. TEXAS PAC. RY. CO., (ANDREOLA, Intervenor.)

United States Circuit Court, E.D. Louisiana.

February 5, 1890

Rice &amp Armstrong, for intervenor.

F. H Prendergast and Howe & Prentiss, for defendant.

PARDEE J.

On the 22d day of March, 1887, the intervenor's wife, while occupying a public carriage, hired for the occasion, was injured through a collision with said carriage and one of the trains operated by the receivers in this cause, at a public crossing in the town of Marshall, in the state of Texas. On the 9th of August, 1887, the intervenor instituted a suit in the district court of Harrison county, Tex., against the receivers, to recover damages for such injuries. The receivers appeared, and demurred to the jurisdiction of the court, and at the same time pleaded a general denial, and contributory negligence. On the trial of the case, in August 1888, the jury returned a verdict as follows: 'We, the jury, find for the plaintiff actual damages, including all expenses, to the total amount of four thousand five hundred dollars. ' Upon which verdict the court rendered the following judgment:

'It is therefore considered, ordered, and adjudged by the court that the plaintiff do have and recover of the defendants John C. Brown and Lionel A. Sheldon, in their capacities as receivers of the Texas & Pacific Railway, the sum of four thousand five hundred dollars, ($4,500.00,) the finding of the jury aforesaid, together with all the costs of this suit; that this judgment be certified to the honorable circuit court of the United States for the eastern district of Louisiana, at New Orleans, in which said court said receivers were appointed, and under the orders of which said Brown is now, and has been, operating said road, to be paid, under the orders of said court, out of the earnings of said railroad; and it is further ordered, adjudged, and considered by the court that this judgment shall be a lien upon the earnings of said road in the hands of said receiver, arising from the operation of said road in Texas, and on all machinery purchased by the receivers under said earnings, and on the improvements and betterments placed upon said railway in Texas, out of the earnings of said railway.' By intervention, the said judgment has been presented in this case, with a prayer to this court to recognize the same, and to render such orders and assistance as may be equitable, etc. The master reported in favor of intervenor, and to his report defendant has excepted. The questions presented as to the conclusiveness of the judgment presented are the same as those in the Case of Sullivan, ante, 311, (just decided;) and, for the reasons given in the opinion in that case, will be ruled the same way.

The evidence shows that the injury to the intervenor's wife was caused by the negligence of the servants and employes of the receivers, in that they started the train, near a public crossing, without giving any signal of such intention, and did so while a line of carriages was crossing the track; and further, in this, that while the train was standing thereby ready to cross, an employe of the receivers gave notice to the carriage drivers that they could cross over in safety. There is some evidence to show that the driver of the carriage containing the intervenor's wife and others was also guilty of negligence in driving onto the track without sufficient care. For the purposes of this case, such negligence may be conceded, with the finding that it contributed to the injury resulting to the intervenor's wife. It is contended in the exceptions and in argument that such negligence on the part of the driver is to be imputed to the party injured, and that the intervenor cannot recover because of such contributory negligence; citing Thorogood v. Bryan, 8 C.B. 115; Whit. Smith, Neg. 405; Patt. Ry. Acc. Law, Sec. 86; Beach, Contrib. Neg. Secs. 34-36. On this point there are no decisions cited as to the jurisprudence of Texas. In Little v. Hackett, 116 U.S. 366, 6 S.Ct. 391, on a state of facts differing in no important particular from ...