Ft. Worth & D. C. Ry. Co. v. Suter

• Decision Date: 27 February 1909
• Citation: 118 S.W. 215
• Parties: FT. WORTH & D. C. RY. CO. v. SUTER.
• Court: Texas Court of Appeals

118 S.W. 215

FT. WORTH & D. C. RY. CO. v. SUTER.

Court of Civil Appeals of Texas.

February 27, 1909.

Appeal from District Court, Wichita County; A. A. Hughes, Special Judge.

Action by R. H. Suter against the Ft. Worth & Denver City Railway Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Spoonts, Thompson & Barwise, L. H. Mathis, and C. C. Huff, for appellant. J. T. Montgomery, for appellee.

SPEER, J.

This is an appeal by the Ft. Worth & Denver City Railway Company from a judgment in favor of R. H. Suter for $1,000 as damages growing out of an overflow alleged to have resulted from a failure of the railway company to maintain proper culverts for the escape of water.

It is first urged that the court erred in the following paragraph of his charge, to wit: "It is the duty of a railway company in constructing and maintaining its roadbed and track to provide and maintain the necessary culverts and sluiceways to carry the waters of all streams which it may cross and the surface waters resulting from rainfall as the natural lay of the land requires, so as not to divert such waters from their natural course." The proposition announced is that it is the duty of a railway company to use ordinary care to maintain the necessary culverts and sluices to carry off the water of streams and surface, whereas the court imposed upon appellant the absolute duty of doing so. The charge as given appears to be fairly within the statute (article 4436, Rev. St. 1895), and is abundantly supported by the authorities. Austin & Northwestern Ry. Co. v. Anderson, 79 Tex. 427, 15 S. W. 484, 23 Am. St. Rep. 350; Clark v. Dyer, 81 Tex. 339, 16 S. W. 1061; Tex. & Pac. Ry. Co. v. Whitaker, 36 Tex. Civ. App. 571, 82 S. W. 1051; S. A. & A. P. Ry. Co. v. Gurley, 37 Tex. Civ. App. 283, 83 S. W. 842. While appellee's petition alleges that appellant's failure to construct the necessary culverts and sluiceways was negligence, it nevertheless sets forth such facts as to show that appellant has not complied with the statute cited, and his rights are not thereby limited by the further unnecessary allegation that such failure was negligence. Moreover, the failure to perform a plain statutory duty resulting in injury to another is necessarily negligence.

The third paragraph of the court's charge is next attacked as being upon the weight of the evidence. This paragraph reads as follows: "You are further instructed that, if you find for the plaintiff under the foregoing...