Atchison, T. & S. F. Ry. Co. v. Tack

Citation130 S.W. 596
CourtCourt of Appeals of Texas
Decision Date15 June 1910
PartiesATCHISON, T. & S. F. RY. CO. v. TACK.

Appeal from District Court, El Paso County; A. M. Walthall, Judge.

Action by I. A. Tack against the Atchison, Topeka & Santa Fé Railway Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Terry, Cavin & Mills and A. H. Culwell, for appellant. Patterson & Wallace, for appellee.

JAMES, C. J.

Appellee sued for damages for personal injury alleged to have been sustained by him on or about March 2, 1908, while engaged as a locomotive engineer in the service of appellant in New Mexico. He alleged that whilst in the performance of his duties in ascertaining the condition of the engine, and whilst in the usual position assumed on the side of the cab in doing such inspection, he was struck by a cattle guard and injured; the same being constructed and maintained too close to the track. The petition alleged, in addition, the act of Congress of June 11, 1906, known as the "employer's liability act" (Act June 11, 1906, c. 3073, 34 Stat. 232 [U. S. Comp. St. Supp. 1909, p. 1148]), which at the time of the accident superseded all laws of the territory governing the relations of plaintiff and defendant. It does not appear to be necessary to state further from the petition. Defendant, among other things, specially excepted to the petition, stating: "The plaintiff's cause of action, as stated in the petition, is based and predicated upon an act of Congress known as the "federal employer's liability act," passed and approved by the Congress of the United States of America April 22, 1908 (Act April 22, 1908, c. 149, 35 Stat. 65 [U. S. Comp. St. Supp. 1909, p. 1171]), which said petition states is the law applicable to recovery in this case and governs the liability of the defendant to plaintiff, as in said petition set out, and on which said law and act of Congress plaintiff relies for the law of the case, and defendant demurs to said petition and all of the same because the act of Congress upon the provisions of which it is alleged cause of action is based is unconstitutional, in this," etc. This exception was by the court sustained. The answer pleaded also general denial, assumed risk, contributory negligence, and that the laws of New Mexico require the risk assumed by locomotive engineers. A verdict was returned for $5,000 in favor of plaintiff.

It is briefed as fundamental error that the court erred in not submitting the case under terms and provisions of the federal employer's liability act of June 11, 1906, and appellant advances several propositions in this regard. One is that, said act being constitutional and applicable in the territory, it was the duty of the trial court to take notice of it and apply its provisions in the determination of the issues. Another is that under said act the jury were authorized to find that both parties were negligent, and to have reduced the recovery accordingly; but under the charge as given it cannot be determined that this was done by the jury and injury will be presumed. And third that there was no rule of law in force at the time of the accident which would permit the submission of this cause under the issues and theories submitted; that the statute laws of Texas regulating the liability of railway companies to their employés in force at the time of this accident were void and not enforceable as applied to the facts of this case, because the subject-matter had been fully covered by act of Congress, which conflicted with the laws of Texas on the same subject.

Pretermitting the question whether or not appellant is in a position to claim here the benefits of said act of Congress, after having caused the trial court to hold the same unconstitutional, we address ourselves to the question whether or not defendant was prejudiced, in reference to said act, by reason of the court having tried the case in accordance with the laws of Texas on the subject.

The only particular in which appellant claims to have sustained injury is that the laws of Texas, by which the case was tried, did not permit the jury to apportion the loss between the parties, but required that one or the other should bear the entire burden, and "that it cannot be asserted that a judgment in as large a sum as is...

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5 cases
  • Favre v. Louisville & N. R. Co
    • United States
    • United States State Supreme Court of Mississippi
    • January 24, 1938
    ......209; Washington R. R. v. Scala, 244 U.S. 630, 61 L.Ed. 1360; Murphy v. Wabash. R. CO., 21 S.W. 862; [180 Miss. 848] Atchison, T. & S. F. Ry. Co. v. Tack, 130 S.W. 596; Northern. Ala. Ry. Co. v. Mansell, 36 So. 459; Fredenburg v. Northern Cent. Ry. Co., 21 N.E. 1049; ......
  • El Paso Electric Ry. Co. v. Shaklee
    • United States
    • Court of Appeals of Texas
    • May 3, 1911
    ...no ground of complaint, for the finding under the charge must have been that appellee was not guilty of any negligence. Railway v. Tack (Tex. Civ. App.) 130 S. W. 596. It follows that it is unnecessary to pass on the question as to whether the act of 1909 applies to street railway The ninth......
  • Morrison v. Hammack
    • United States
    • Court of Appeals of Texas
    • November 20, 1912
    ...of Courts of Civil Appeals; Wirtz v. G., H. & S. A. Ry. Co., 132 S. W. 510; Barnett & Record Co. v. Fall, 131 S. W. 644; A., T. & S. F. Ry. Co. v. Tack, 130 S. W. 596. It is true there is an effort to conform to the rules, but the proposition is more in the nature of a statement, and the st......
  • Schaff v. Morris
    • United States
    • Court of Appeals of Texas
    • December 11, 1920
    ...ought not to be disturbed. Railway Co. v. Hannig, 91 Tex. 347; Railway Co. v. Turner, 99 Tex. 547, 91 S. W. 562; Railway Co. v. Tack, 61 Tex. Civ. App. 551, 130 S. W. 596; Hawley v. Railway Co., 133 Fed. 150, 66 C. C. A. 216; Harvey v. Railway Co., 166 Fed. 385, 92 C. C. A. 237; Railway Co.......
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