Dall. & Wichita R'Y Co. v. Spicker

• Decision Date: 22 April 1884
• Docket Number: Case No. 4984.
• Citation: 61 Tex. 427
• Court: Texas Supreme Court
• Parties: THE DALLAS & WICHITA R'Y CO. v. HANNAH T. SPICKER.

61 Tex. 427

THE DALLAS & WICHITA R'Y CO.

v.HANNAH T. SPICKER.

Case No. 4984.

Supreme Court of Texas.

Apr. 22, 1884.

APPEAL from Dallas. Tried below before the Hon. Geo. N. Aldredge.

Plaintiff below, Hannah T. Spicker, alleged that her husband, Henry Spicker, whilst being transported in a train of cars over one of defendant's bridges, received injuries of which thereafter he died; that they were caused by the giving away of the bridge, and the falling through of the train; that the bridge was constructed by defendant negligently, and without care, in disregard of human life, and was permitted to become, for want of proper care, unsafe and dangerous to human life; that Henry Spicker, when he received the injuries, was an employee of independent contractors engaged in the construction of defendant's road, and by defendant's consent, its train, owned and operated by it (but for construction purposes), was being operated over the bridge when deceased was injured; that plaintiff was the surviving wife of said Spicker, who left neither father or children, and whose mother, Elizabeth Spicker, resided in Cass county, Illinois; that the suit was brought for the benefit of the mother as well as plaintiff; that by the death of said Spicker plaintiff had sustained loss and damage in the sum of $15,000, and the mother has been damaged $10,000.

Defendant filed a general denial, and pleaded specially, in substance:

1. That said Henry Spicker was neither an employee of defendant or a passenger on its road, but was an employee of Boyle & Runnels, independent contractors engaged in the construction of defendant's road; that the road where Spicker was injured had not been accepted by defendant, nor was it using it, but it was then being used by Boyle & Runnels in its further construction.

2. That if defendant's bridge was defective and unsafe, the fact was well known to deceased before it gave way, and that, by remaining in the service of Boyle & Runnels, with knowledge that the bridge was unsafe, and that he would have to pass over it, he thereby assumed such risks as were incident to that service.

3. That if Spicker was ever the husband of plaintiff they had separated and abandoned each other long prior to his death, and were not then living together as man and wife; that Spicker did not then recognize plaintiff as his wife, and repeatedly asserted, just prior to his death, that he had no wife; and that if he was nominally plaintiff's husband she had no reasonable expectation of deriving benefit or profit from the continuance of his life.

Verdict for the plaintiff, Hannah T. Spicker, for $5,000, and for the mother for one dollar. Judgment accordingly.

Leake & Henry, for appellant, cited: Wood on M. & S., pp. 755, 800; Pierce on Railroad Law, 298, 379; 25 Mich., 281;8 Allen, 138;100 Mass., 208;50 Me., 222;32 Iowa, 146;16 Ill., 558;44 N. Y., 465;29 Conn., 204;54 Miss., 391;17 Ind., 138; Wharton on Neg., secs. 426, 427, 428; 29 Iowa, 14; 2 Thompson on Neg., p. 1178; 33 N. J., 434;22 Minn., 152;41 Wis., 105; Wood on M. & S., secs. 337, 382; 52 Tex., 178;55 Tex., 210;46 Tex., 540;56 Tex., 452;55 Tex., 116;1 Texas Law Review, 117, 134, 245;58 Tex., 276;25 N. Y., 566; 1 Am. & Eng. R. R. Cas., 101; 2 Id., 238; R. S., art. 2900; Dallam, 554; 2 Tex., 135;4 Tex., 465;8 Tex., 462;30 Tex., 57;35 Tex., 435;31 Tex., 95;17 Tex., 226;13 Tex., 81, 458;9 Tex., 23;6 Tex., 352;52 Tex., 112.

R. E. Cowart and Sawnie Robertson, for appellee, cited: Tex. & Pac. R'y Co. v. Murphy, 46 Tex., 356.

STAYTON, ASSOCIATE JUSTICE.

Complaint is made that the court below instructed the jury “That the burden of proving that Henry Spicker knew of the defective construction and unsafe condition of the bridge is on the defendant.”

The defendant, in its answer, alleged that the defects in its bridge, from which resulted the injury to Henry Spicker, were known to him, and such knowledge, coupled with his passing over the bridge, was made the grounds of the defense of contributory negligence on the part of the injured person, on account of whose death this suit was brought by his wife and mother.

The ordinary rule, which places the burden of proof upon the person who, as a cause of action or defense, alleges an affirmative matter would seem to be applicable to cases of this character as to others.

It would seem that a plaintiff would be entitled in every case of this character to recover upon evidence which clearly makes a prima facie case, unless such case be rebutted by testimony offered by himself or by the defendant.

In the case before us the evidence clearly shows that Henry Spicker received the injury from which he died in consequence of the fact that the appellant had erected, on and as a part of its road, a bridge, over which it was intended its trains should pass, which was, within the knowledge of the chief engineer of the company and other of its officers and agents, so negligently and defectively constructed as to be unfit and unsafe for the use intended. The injury of which the appellees complain resulted from those defects, and this, no further or exculpatory facts appearing, entitled the plaintiffs on this branch of the case to recover.

There is some apparent conflict of authority on this question. It is, however, believed to be more apparent than real, and we have now no disposition to review the cases which are supposed to hold that it is necessary not only for a plaintiff to prove that the injury of which he complains resulted from the negligence of the defendant, but that he must also prove that he himself was in the exercise of due care.

We believe the true rule to be that thus stated by an elementary writer: “No doubt where, in an action for injuries caused by failure of duty on the part of the defendant, the failure of duty and the injury are shown by the plaintiff, and there is nothing that implies that he brought on the injury by his own negligence, then the burden is on the defendant to prove that the plaintiff was guilty of such negligence. On the other hand, when the plaintiff's own case exposes him to suspicion of negligence, then he must clear off such suspicion.” Wharton on Negligence, 426.

There is no fact in proof in this case which tends to show contributory negligence by the deceased. That employees of the railway company may have known of the defective construction of the bridge by reason of their having assisted in its construction; or that the employer of the deceased may have known of the defects; or that persons working for the railroad, in its employment, may have known of the defects in the bridge, is not evidence of the fact that the deceased, who was not in the employment...