Galveston City Ry. Co. v. Nolan

• Citation: 53 Tex. 139
• Decision Date: 23 March 1880
• Docket Number: Case No. 1169.
• Parties: GALVESTON CITY RAILWAY CO. v. MICHAEL NOLAN.
• Court: Texas Supreme Court

53 Tex. 139

GALVESTON CITY RAILWAY CO.

v.MICHAEL NOLAN.

Case No. 1169.

Supreme Court of Texas.

Mar. 23, 1880.

APPEAL from Galveston. Tried below before the Hon. Wm. H. Stewart.

Suit by Michael Nolan against the Galveston City Railroad Company for injuries to himself and to his dray, caused by alleged imperfections in defendant's railroad track and roadbed, over which plaintiff drove his dray loaded with whisky. The defense was: First, a general denial; second, that the injuries complained of resulted from the negligence of plaintiff; third, that if the injuries resulted from negligence of defendant, plaintiff was guilty of contributory negligence. There was a verdict and judgment in favor of plaintiff for $1,300.

Plaintiff alleged that his dray was sound and in good order and repair, and was carefully and properly laden with three barrels of whisky at the time of the accident, which resulted in the injuries complained of as the basis of the suit; that in driving his dray so loaded along the streets of Galveston, he crossed defendant's railroad track; that in so doing, by reason of alleged unevenness between the surface of the street and defendant's track over which he crossed, the wheels of his dray struck against the track with such concussion as to crush the wheels of the dray, throwing plaintiff off upon the ground, throwing the whisky down upon him, causing severe personal injuries, for which, as well as for damage done the dray, this suit was brought.

Defendant pleaded contributory negligence on the part of defendant. There was evidence to show that, at the time of the accident, the dray was old, worn, unsuited to the purpose of transporting whisky, and was improperly laden. But on this subject there was conflict.

There was much controversy about the old dray, and charges asked and refused about it, which, in view of the opinion, need not be noticed.

The defendant requested the court to charge the jury: That if they believed the alleged accident was occasioned, in whole or in part, through the negligence or imprudence of plaintiff, in using a dray that was not safe to be used, * * * or in driving said dray over irregularities which plaintiff either saw, or by use of ordinary care might have seen, before reaching such irregularities, it was immaterial whether such irregularities were the result of fault on defendant's part, and they should find for defendant. This charge was refused.

There was proof tending to show that plaintiff crossed defendant's track in order to avoid approaching vehicles. The street was frequented by vehicles, was much cut up, worn into holes, and worn down from the established grade, especially alongside the defendant's track, leaving the track at such places exposed above the actual surface of the street; this was the case where the accident occurred, which facts were known to plaintiff at and before the accident, and that it was dangerous to drive a loaded vehicle over the track at the place where the accident occurred.

Defendant was an incorporated company. Its charter subjected it in the construction, equipment and running of its railroads, to such conditions and ordinances as the mayor and aldermen of the city of Galveston might impose. The charter of the city of Galveston gives to the city authorities exclusive control and power over the streets, alleys and public grounds and highways of the city, and to abate and remove encroachments or obstructions thereon; to open, extend, establish, grade or otherwise improve the same; * * * to direct and control the laying and construction of railroad tracks, turn-outs and switches, or prohibit the same in the streets, avenues and alleys unless the same shall have been authorized by law; * * * to require that railroad tracks, turn-outs and switches shall be so constructed as to interfere as little as possible with the ordinary travel and use of streets, avenues and alleys; * * * to compel horse or city railroads to keep their roads in repair. * * *

The mayor and aldermen of the city, by contract with defendant, imposed the following obligations and conditions upon defendant's exercise of its charter franchises, viz.: “That defendant should lay such a rail, and so construct the railroad, that they should not impede carriage travel upon the street occupied by said track after said streets should have been graded by the city; and at all times to keep its road-bed in good repair, and keep it up to the level of the streets, and in no case should said road-bed be above or below the city grade of the street after said street should have been graded by the city.” Under this contract defendant's road was constructed on Market street, and at the point where the accident occurred. In 1877 the municipal authorities of the city established, as the permanent grade of the street where the accident occurred, 6 2-10 feet above the mean low tide, and raised the surface of the street to the established grade. At the same time defendant raised its track so as to bring the upper surface of the rails on a level with the established grade, and at that level it has since remained, and was at the time of the accident. The street at and near the place of the accident was always extensively used by heavily loaded vehicles as a highway, by reason of which it was cut up, worn into holes, and worn down from the established grade, at the point where the accident occurred, leaving defendant's rail exposed above the surface of the street. Plaintiff, in attempting to cross defendant's track at this place, broke his dray by reason of the railroad iron being two or three inches above the ground, and the injuries resulted therefrom. The defendant asked the court to charge the jury that, if plaintiff's injuries resulted from the exposure of defendant's track above the surface of the adjacent street, and defendant's track was on the level of the grade fixed by the city authorities, defendant was not answerable for the surface of the street being lower, and the court refused so to charge, but instructed the jury as will be seen quoted in the opinion.

After trial, and pending appeal, Nolan died; that fact was suggested in this court, supported by affidavit, and a motion was made to abate the suit.

Scott & Levi for appellant.

I. While article 1044 does not, in terms, abate any suit founded originally on a personal cause of action, it evidently intends to do so, because: 1. Of the repeal of every other law by which such a suit could be further maintained, and the exclusion of such suits from the operation of that article. 2. The language of the proviso evidently intends to refer to the cause of action originally sued on, as determining whether or not it shall come within the meaning of the law, and not to the cause of action in the supreme court as distinguished and defined in Gibbs v. Belcher, supra, for, under that decision, all such suits survive, and the proviso would be meaningless. If, therefore, it is not intended to operate an abatement in suits originally founded upon causes of action which do not survive, then have the legislature made a most unreasonable distinction in denying these suits the privilege accorded others in this court, of being decided without making new parties and requiring new parties to be made in this court, only in cases which, in the district court, are based on causes of action which do not survive. For in Gibbs v. Belcher, 30 Tex., 79, this court says that there is no sensible distinction between such causes and others, when they reach this court.

II. The injuries complained of by plaintiff were the result of exposure of defendant's track and road-bed above the surface of the adjacent street. Defendant's track and road-bed were on the level which the law required it should keep and observe. The adjacent street was not subject to control or interference of defendant, who could not be held responsible for injuries thus occasioned. San Antonio v. Lewis, 9 Tex., 71;Bennett v. Hollis, 9 Tex., 442;Reid v. Reid, 11 Tex., 593;Galveston City v. Galveston City Railroad, 46 Tex., 435; Warner v. R. R. Co., 6 Phila. (Pa.), 537; Mosely v. Baker, 2 Sneed (Tenn.), 362; Addison on Torts, vol. 2, § 1, ch. XVI, and notes, with authorities therein cited; Broom's Legal Maxims, 181, 187; Robbins v. Omnibus Co., 32 Cal., 472;Lackland v. N. M. R. R. Co., 34 Mo., 259;6 Allen (Mass.), 449.

III. When defendant had placed its track and road-bed on the level of the established grade of the streets, as fixed by the municipal authorities of the city of Galveston, and maintained its said track and road-bed on said level, its whole duty was performed, and it could do nothing more towards the safety of passengers and vehicles crossing its track and road-bed, without either violating its obligation by lowering its track and road-bed below said level, so as to conform to the wearing away of the adjacent...