Cunningham v. Int'l R.R. Co.

• Decision Date: 01 January 1879
• Citation: 51 Tex. 503
• Parties: JAMES CUNNINGHAM v. THE INTERNATIONAL RAILROAD CO.
• Court: Texas Supreme Court

51 Tex. 503

JAMES CUNNINGHAM

v.THE INTERNATIONAL RAILROAD CO.

Supreme Court of Texas.

1879.

APPEAL from Robertson. Tried below before the Hon. D. M. Prendergast.

Suit was instituted by the appellant, James Cunningham, against the International Railroad Company, to recover damages for personal injury alleged to have been received in November, 1872, while a passenger on the defendant's line of railway, between Reynolds and Troupe.

To this action defendant set up, as a special defense, that the section of road upon which the accident is alleged to have occurred and the train on which the alleged injuries were received were then in the exclusive possession and control of Douglas, Brown, Reynolds & Co., persons who had contracted with the defendant to construct that portion of the road, and that the train upon which plaintiff was hurt was at the time being operated for the sole benefit of such contractors and by their agents, servants, and employés, and not by the servants, agents, or employés of the International Railroad Company; and further, that said portion of railroad was not then open for the transportation of passengers, and defendant did not receive the plaintiff, nor authorize him to be received, as a passenger on the construction train.

The court instructed the jury as follows:

“That if the proof shows that the International Railroad Company contracted with Douglas, Brown, Reynolds & Co. for the construction of that portion of its road on which plaintiff was injured, and this portion of the road was then in possession and control of said contractors, and had not been turned over to or received by the company or opened for the transportation of passengers; and if the proof further shows that if the train on which the plaintiff was riding at the time the accident occurred in which he was injured was controlled alone by said contractors and used by them for the purposes of construction, and was run and managed by their servants, agents, or employés, or persons subject to their control or direction, then the defendant would not be liable to plaintiff for damages for any injuries he may have received. The fact that the train was the property of the company will not render it liable, if the proof shows that at the time the accident occurred it was in the exclusive control of the contractors, and was run and managed by them, their servants, agents, or employés. Nor would the fact that passengers were actually carried on the train and paid their fare make the company liable, unless it also appears that this was done by the permission of the company. In determining this question, you will be controlled alone by the preceding instructions and the evidence before you, and will not permit your sympathies and prejudices to have any influence.”

The evidence showed that Douglas, Brown, Reynolds & Co., by contract, had the right to run a construction train on the line of appellee's road, and were not limited to that portion not at that time turned over to appellee; that the contractors required the use of the road for construction purposes, and that they “used the road for the purpose of transporting material used in construction, being cheaper transportation than by wagon”; “that the chief engineer of the road had notified Douglas, Brown, Reynolds & Co., at a date prior to November, 1872, in writing, that carrying passengers and freight upon the trains under their control was contrary to their contract and should not be done, and any of their agents so doing would not be permitted to remain in their employ. Verbal instructions were also given them, at various times, to the effect that nothing but materials and supplies necessary for construction should be carried on trains under their control.” The portion of the road on which the injury occurred was, at the time, under the control of the contractors, as was also the train and employés managing it, the road not having been turned over to the company. The appellant was on a car loaded with cross-ties when he was injured. His injuries consisted of having his hand crippled for life, serious bruises, &c. Verdict and judgment for the company.

Hamman, for appellant.

I. Appellee, in the absence of special statute authority and exemption, could not divest itself of responsibility for the torts of persons operating its road, by transferring its corporate powers to other persons or by leasing its road to them. (York and Maryland Line Railroad Co. v. Winans, 17 How., 30;Nelson v. Railroad Co., 26 Vt., 717;Chicago and Rock Island Railroad Co. v. Whipple, 22 Ill., 108; 1 Redfield Laws of Railways, pp. 590, 593, 705, 708.)

II. Appellee and Douglas, Brown, Reynolds & Co., in the use of the track or portion of the road which was completed though not turned over, as well as the portion they had constructed and had turned over, and in running their train which was used in transporting material for construction purposes and supplies, did not sustain the relation of contractors and contractee. Appellee retained control of the construction train, and did control it. (Houston and Texas Central Railroad Co. v. Moore, 49 Tex., 31;Carman v. S. & I. R. R. Co., 4 Ohio St., 414; Am. Lead. Cas., p. 649; 1 Pars. on Cont., pp. 101-103.)

III. When parties exercise by contract some chartered right or power of the company which they could not exercise independently of such charter, the company that has the charter must be held liable for all the injury which a third party sustains, whether between the company and the party exercising the chartered privileges the relation of master and servant, or contractor and contractee, as technically understood and defined, exists. (O. and M. R. R. Co. v. Dunbar, 20 Ill., 623; Railroad Co. v. McCarthy, 20 Ill., 385;Illinois Central Railroad Co. v. Finnigan, 21 Ill., 646;T. P. & W. R. R. Co. v. Runbold, 40 Ill., 143;Clark v. Corporation of Washington City, 12 Wheat., 54, 55, 59;Vermont Central Railroad Co. v. Baxton, 22 Vt., 365;14 Ill., 85;15 Ill., 72.)

IV. When carriers undertake to carry passengers by the powerful and dangerous agency of steam, public policy and safety require that they be held to the greatest possible care and diligence. Nor is the liability any less because it was a construction or a freight train. (Houston and Texas Central Railroad Co. v. Moore, 49 Tex., 31; Steamboat New World v. King, 16 How., 469;Philadelphia and Reading Railroad Co. v. Derby, 14 How., 486; March v. Concord Railroad Co., 9 Foster, 9; N. & C. R. R. Co. v. Messino, 1 Sneed, (Tenn.,) 220.)

V. It is not competent for a court to strip the jury of the noblest attribute of their nature--sympathy--as was done by the following instruction, viz.: “In determining this question, you will be controlled alone by the preceding instructions and the evidence before you, and will not permit your sympathies and prejudices to have any influence.”

Davis & Beall, for appellee.--The general proposition of law is well settled, that railway companies are not liable for the tortious acts of contractors or contractors' servants, and we can see nothing in the case at bar to take it out of the operation of the general principle. (Redfield Laws of Railways, p. 503, sec. 129, et seq.; Reedie v. London and Northwestern Railway Co., 6 Rail. Cas., 184; Hobbitt v. London and Northwestern Railway Co., 6 Rail. Cas., 188; Steel v. Southeastern Railway Co., 16 C. B., 550; Hutchinson v. York and Newcastle Railway Co., 5 Exch., 343; Quarman v. Burnett, 6 M. & W., 499; Painter v. Pittsburg, 46 Penn., 213;Blake v. Ferris, 5 N. Y., 48;24 Barb., 355; 22 Ver., 170; 3 Gray, 349;8 Gray, 147;41 Ill., 106;2 Neb., 320;1 Ala., 366;1 Allen, 9.)

The cases cited by appellant in which persons contracting to have work done have been held liable for negligence in the manner of doing it, or for the tortious acts of those employed about the work, will, if closely examined, be found to be cases in which the contract, in terms, created only the ordinary hiring for service, or the party who let the work retained and exercised the control and direction of the employés by whom the manual labor was done, or personally participated in the wrong complained of; and these cases do not infringe upon the rule, that the relation of master and servant must really and substantially exist. The cases on this subject are collected in the American note to Holliday v. St. Leonards Co., 11 C. B., (N. S.,) 209, and in a note to the case of Painter v. Pittsburg, 3 Am. Law Reg., (N. S.,) 358; Blake v. Ferrie, 5 N. Y., 54;McGuire v. Grant, 1 Dutcher, 371; Brown v. Accrington Cotton Co., 3 H. & C., 511, 519; Pack v. Mayor of New York City, 4 Seld., 222; Kelley v. Mayor of New York City, 8 N. Y., 432.)

If it be conceded that the use of the cars of the railroad company was the exercise of a chartered right, still it would not affect the question of the appellee's liability in the suit. It was not the office of the charter to create obligations or duties on the part of the company to third persons while constructing its railroad. The obligation, if any, lies in the contract between the parties to it. No stranger can maintain an action on the contract. It does not create the relation of master and servant, nor raise a duty by implication the nonperformance of which will give to third persons a right of action. The mere fact of exercising chartered privileges alone will not fix the liability.

The same principle was distinctly recognized in the cases of Williams v. Jones, 3 H. & C., 256; Parkins v. Scott, 1 H. & C., 153; Ellis v. Sheffield Gas Consumers' Co., 2 E. & B., 767; Hole v. S. & S. Railway Co., 6 H. & N., 488; Storrs v. City of Utica, 17 N. Y., 104;Scammon v. City of Chicago, 25 Ill., 424.)

Tested by the principles of the above cases, it is obvious that the injury received, for which suit is brought, is too far removed from the act of the company to impose a liability for it upon the company.

It did not result naturally or...