Cunningham v. Neal

• Decision Date: 12 February 1908
• Citation: 107 S.W. 539
• Court: Texas Supreme Court
• Parties: CUNNINGHAM et al. v. NEAL.

107 S.W. 539

CUNNINGHAM et al. v. NEAL.

Supreme Court of Texas.

February 12, 1908.

Certified Questions from Court of Civil Appeals of First Supreme Judicial District.

Action by Henry Neal against Ed H. Cunningham and another. From a judgment for plaintiff, defendants appealed to the Court of Civil Appeals. On certified question.

Lane, Jackson & Wolters, Baker, Botts, Parker & Garwood, and C. R. Wharton, for appellants. Lovejoy & Parker, W. G. Love, and R. J. Channell, for appellee.

BROWN, J.

Certified question from the Court of Civil Appeals of the First district, as follows:

"This cause is pending before us on appeal. Appellee, Neal, sued Ed H. Cunningham & Co., a private corporation, and the receiver of its property, for damages for personal injuries sustained by him while in the employment of said receiver, and recovered a judgment. The proof shows: That at the time of Neal's injury Ed H. Cunningham & Co. was a private corporation which owned and operated sugar mills and refineries and a paper mill, and was also engaged in farming. That it was not incorporated as a railroad company. The grounds occupied by the refinery, building, mills, and warehouses at Sugarland, where it conducted its business, occupied about 8 or 9 acres of ground, and over and through these grounds there were numerous tracks, side tracks, and spur tracks of standard gauge railroad, which were built by, and at the time of the plaintiff's injury, and at the time of the trial, owned by, Ed H. Cunningham & Co. and its successors. That a locomotive engine was rented from the Sugarland Railroad Company by Ed H. Cunningham & Co., and was used in said yards on said tracks for the purpose of switching cars and transferring the same to and from the sidings of the Sugarland Railroad Company and the Galveston, Harrisburg & San Antonio Railroad Company to and from the refineries and warehouses of Ed H. Cunningham & Co. That the appellee was one of a crew who operated the engine and cars in said switchyard, and he and the others of the crew were employed and paid by Ed H. Cunningham & Co., and all the cars delivered to said company by the Galveston, Harrisburg & San Antonio Railroad or the Sugarland Railroad were handled upon the yards of the Cunningham Company by the said engine and crew. There was no testimony to show that Ed H. Cunningham & Co. was a common carrier, but it was shown that the said tracks were built and said engine used by it to expedite its private business only. The appellee alleged in his petition, and the evidence is sufficient to prove, that his injuries for which he recovered damages were the result of the negligence of the other members of the switching crew—his fellow servants —engaged with him in the switching and moving of cars in said yards over the tracks of railroad belonging to Ed H. Cunningham & Co. Appellants, in their answer, pleaded that they were not liable for the damages claimed by appellee in his petition, for that appellee's said co-employés were his fellow servants, and that appellant was not liable for their negligent acts resulting in injuries to appellee. Under these facts we respectfully certify for your decision:

"Did the tracks, side tracks, and spur tracks of standard gauge railroad so owned and operated by Ed H. Cunningham & Co. constitute a railroad within the contemplation of the fellow servants act of 1897 (Rev. St. art. 4560f)? Because we are not inclined to follow the case of Lodwick Lumber Co. v. Taylor, 87 S. W. 358, decided by the Court of Civil Appeals of the Fourth district, we deem it wise to certify the foregoing question for your decision."

To the question propounded we answer: The facts stated bring the railroad within the terms of the following article of Sayles' Ann. Civ. St. 1897: "Art. 4560f. Every person, receiver...