East Line & Red River R. Co. v. Culberson

CourtSupreme Court of Texas
Citation10 S.W. 706
Decision Date05 February 1889

Appeal from district court, Camp county; W. P. McLEAN, Judge.

Todd & Hudgins, for appellant. Moore & Hart, Sheppard & Thompson, J. M. Pouns, and C. A. Culberson, for appellee.


W. A. Culberson, while operating a train upon the road of the appellant company as conductor, lost his life in endeavoring to make a coupling between the engine under his control and a train in its front. The appellee, who was his wife, brought this suit, on behalf of herself and other beneficiaries, to recover damages under the statute for the injury. She alleged that the accident resulted from a defect in the engine and the incompetency and carelessness of the engineer. During the progress of the trial the defendant offered to prove by a witness that at the time of the accident the road was not operated or controlled by the defendant company, and that the deceased was not in its service at the time, but was in the employment, and was acting for the Missouri, Kansas & Texas Railway Company, another corporation. Upon objection to this testimony by the plaintiff, it was excluded by the court. There is a plea in abatement in the record, which sets up that the road of the defendant company was leased to the Missouri, Kansas & Texas Railroad Company by authority of law; but it was neither sworn to nor insisted upon at the trial, and it must be considered as waived. If, however, the facts justified the conclusion, it was competent, however, for defendant to show under its general denial that although the injury was received upon its road, and was actionable, another company was responsible for such injury, and that it was not liable. Did the evidence offered tend to show this? The defendant did not offer, in connection with its other testimony, to prove that the Missouri, Kansas & Texas Company was operating and controlling its road by authority of any statute, and we think the question must be treated as if no such authority existed. We have then the question of the right of a servant of a railway company, operating without authority of statute a road belonging to another corporation, to recover of the owner damages for personal injuries resulting to him in the course of his employment through the negligence of his employer, or of its officers or agents. This is a new question in this court, and one upon which we have found no direct authority which is at all satisfactory. This court has held that a railroad company cannot without statutory authority lease its road to another so as to absolve itself of its duties to the public, and that when such lease is made the lessor is liable for an injury to a passenger resulting from the negligence of the lessee. Railroad Co. v. Underwood, 67 Tex. 589, 4 S. W. Rep. 216; Railroad Co. v. Rushing, 69 Tex. 308, 6 S. W. Rep. 834. We have also held that, in case of an unlawful lease or sale, the lessor or vendor is liable to a shipper for the failure of the company operating the road to furnish transportation upon his demand. Railroad Co. v. Morris, 68 Tex. 49, 3 S. W. Rep. 457.

There have been numerous decisions in other states holding the lessor liable, when the lease is unauthorized, for injuries to live-stock, and to persons crossing the track, caused by the negligence of its lessees; so that it may now be considered the accepted and settled doctrine that, in all cases where one railroad company is operating trains upon the road of another without authority of law, the owner of the road remains responsible for the discharge of its duties to the public, and becomes liable for injuries resulting from the lessee's failure to perform those duties. The lessor, by accepting its charter, assumes the obligation to carry passengers safely over its line. If it intrusts that duty to another company, and a passenger is injured, it is responsible. It binds itself to carry all freight offered to it, and to deliver it safely. Should its lessee fail to do this, it is liable. It assumes to operate its road safely and carefully, so as not negligently to destroy or damage property, and not to injure persons who have the right to pass on or near the track. Should its lessee negligently do damage to property, or inflict personal injuries upon wayfarers crossing the road, this is failure of duty on its part, and it is responsible for the wrong. But the duties which are owed by a railroad company to its servant are not duties owed to him in common with the public, but grow out of the contract of service. He assumes the relation of servant to his employer voluntarily, and out of it arises the reciprocal obligations from one to the other. It seems to us that the relation of the servant of the company operating the road to the owner is very different from his relation to his employer, and that relation of the owner of the road to him is different from its relation to the general public. His contract is not with the company owning the road, and it may be asked, does the latter owe him the duty of a master to his servant, or guaranty that the master with whom he has voluntarily contracted will perform its obligation to him? It may be that if the injury had occurred by reason of a defect in the road-bed or track, and not by reason of a defect in the engine, the company charged with the duty of keeping up the road would be liable. But if it were true that the injury was caused entirely by another company operating the owner's road, and was inflicted upon one of its own employes, it is difficult, by reason of a defect in machinery entirely under its control, to see upon what principle of policy or justice the lessor should be held liable merely because it owned the road.

In the case proposed to be made by the evidence offered, it seems to us that the liability of the deceased's employer would have been precisely the same on the defendant's road as if the train had been running upon its own road at the time of the accident. The act of the Missouri, Kansas & Texas Company in operating the road without a license from the legislature, if such was the fact, was merely illegal in the sense that it was unauthorized, and the object in holding the lessor responsible in such a case is certainly not to impose a mulct or fine by way of punishment. The reason for the rule is the protection of the public who need the protection. The passenger and the shipper of goods have no option, but must avail themselves of the services of the lessees, whether the lease is authorized or not. The law will not permit the owner of the road to shirk its duty to them by turning over its road to another company; nor will it permit it to deny its liability where it has allowed such other company, without authority of law, negligently to injure wayfarers over the track or property along the line. There is no privity between the persons injured in such case and the operating company. It is not so with an employe who voluntarily enters the service of the latter company with a knowledge of the facts, and participates knowingly in the wrong, if wrong it be. Where in similar cases a recovery has been permitted against a lessor, it has usually been allowed upon various considerations of public policy: First, because the franchises granted are in the nature of a personal trust, and sound policy demands, so far as the general public is concerned, that the corporation receiving the grant should be held responsible for the proper execution of the powers granted; and, second, for the reason that to deny the responsibility of the lessor would enable a railroad to shirk its responsibility, and to injure the public by placing its property under the control of irresponsible parties; and, third, because a person who has received an injury at the hands of the operating company, and was ignorant of the relations between that company and the owner of the road, might be at a loss to determine against which to bring his action, and thereby placed at a disadvantage in seeking a redress of his wrongs.

None of these reasons apply on the case of the servant of a lessee who is injured through the neglect of his employer. He needs no protection as one of the general public, because he can enter the service or not as he chooses. He is under no compulsion to take employment from an irresponsible company, and he certainly knows whom to sue for a wrong inflicted through his employer's neglect, for the latter is certainly liable to him in such a case. The reason of the rule which holds the lessor liable fails in case of an employe of the lessee, and we think that to follow it in a case like this would be to give it an arbitrary, and not a reasonable, application. We conclude that the court erred in excluding the testimony, and for this error the judgment must be reversed. We do not know what the evidence may disclose upon another trial as to the relations of defendant corporation and the Missouri, Kansas & Texas Company, and it would be futile to attempt to anticipate the questions that may arise. We merely hold now that the evidence offered and excluded, tended, prima facie, to show that the defendant was not liable for the alleged injury. This case was reversed upon a former appeal, because it was then held that the mother of the deceased should have been made a party as...

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