Galveston, H. & S. A. Ry. Co. v. Garteiser

• Decision Date: 16 January 1895
• Citation: 29 S.W. 939
• Parties: GALVESTON, H. & S. A. RY. CO. v. GARTEISER.
• Court: Texas Court of Appeals

29 S.W. 939

GALVESTON, H. & S. A. RY. CO. v. GARTEISER.

Court of Civil Appeals of Texas.

January 16, 1895.

Appeal from district court, Bexar county; George H. Noonan, Judge.

Action by August Garteiser against the Galveston, Harrisburg & San Antonio Railway Company. Judgment for plaintiff, and defendant appeals. Affirmed.

For prior report, see 21 S. W. 631.

Upson & Bergstrom, for appellant. W. W. Boone and Thos. H. Franklin, for appellee.

FLY, J.

This is a suit for personal injuries alleged to have been inflicted upon appellee by the railroad company, while the former was riding upon a hand car, in the course of his employment on the road. The judgment was for $7,500. This is the second appeal, the decision on the former being reported in 2 Tex. Civ. App. 234, and 21 S. W. 631. Appellant pleaded general denial and contributory negligence on the part of appellee.

We find that the record will justify the following conclusion of facts: Appellee, on the 25th day of March, 1887, was in the employ of one Heineman, who was an independent contractor to build a fence for appellant along its line of railroad; that on the morning of March 25, 1887, appellee in company with his employer and other employés, was on board a hand car on appellant's railroad, proceeding to the place where work on the fence was being prosecuted. The hand car on which Heineman and his employés were riding was furnished by appellant to him in 1884, and he had authority to use the track with the hand car in going from point to point in the prosecution of his work. When the hand car was on a bridge across Geronimo creek, a train came suddenly upon them, and, in order to save their lives, Heineman and his employés left the hand car, and, in leaving the hand car, appellee fell from the bridge, and received serious and permanent injuries, resulting in paralysis of the legs, damage to the spine, and total incapacity for labor. Appellee was earning $1.50 per day when injured, was 27 years old, and was strong and vigorous. No signals were given at the road crossing a few hundred yards east of the bridge. When the train was first seen, it was so close to the hand car that appellee was compelled to leave it in order to save his life. Appellee had no notice of the approach of the train until he saw it. The train was not a regular one, but was an extra.

It is urged that the court erred in refusing to submit the question of a lease of its road by appellant to the Southern Pacific Company. This position is, however, not well taken. The lease of the road would in no manner affect the liability of its owner for any damages that might accrue to the public, whether committed through the negligence of the lessor or lessee. There being no statute in this state permitting it, a railroad cannot by a lease evade any responsibility it may owe to the general public. Railroad Co. v. Morris, 68 Tex. 59, 3 S. W. 457; Railroad Co. v. Keuhn, 70 Tex. 582, 8 S. W. 484; Railroad Co. v. Eckford, 71 Tex. 274, 8 S. W. 679; Railroad Co. v. Lee, 71 Tex. 538, 9 S. W. 604.

Appellee was not in the employ of either appellant or the Southern Pacific Company, but was working for one Heineman, an independent contractor, who was building a fence for appellant for a certain sum for each mile constructed. The relation of master and servant did not exist between appellee and appellant, and its duty to him was the same as though he was a member of the general public, and in no wise connected with it by employment. Ror. R. R. p. 1205; Prince v. Railway Co., 64 Tex. 144; Railroad Co. v. Cock, 68 Tex. 713, 5 S. W. 635. Such being the case, the duty of the railway company was the same as that which it owed to any one else from the general public who had the right given him to use the track of the railroad. Appellee was not a trespasser upon the track, but, under the authority given his employer to use the track in conveying his employés from one point to another, was rightfully on the hand car. He would therefore occupy the same relation to the railroad company that any person would who was licensed or permitted to be on the track, and subject to the same rules as to contributory negligence. Appellee was in the discharge of his duty to his master at the time that the injury was inflicted, and was not standing in the relation of employé to the railroad company, and, if not guilty of contributory negligence, was entitled to recover. Eason v. Railway Co., 65 Tex. 578; Bonner v. Bryant, 79 Tex. 540, 15 S. W. 491. The plaintiff was lawfully upon the hand car at the time of injury. The car itself was in the regular performance of its duty, and was making the trip in furtherance of a contract with the railroad company. The train was not a regular one, and without giving any signal, and at a high rate of speed, it passed the road crossing, and collided with the car. Those on the hand car had stopped before going on the bridge, and listened for a train. None was heard. "Whilst the statutory signals to be given at road crossings are intended as warnings to persons upon the road or near the crossing, the failure to give them may be taken into consideration, together with other facts, to show want of reasonable care on the part of the company as to other parties lawfully upon the railway." Railway Co. v. Gray, 65 Tex. 32. The statute requires that proper signals shall be given by a train approaching a public crossing, and, while the primary object and design of the statute was to protect persons and property at the crossings, the disregard of the statute may be weighed by the jury as a circumstance to show negligence, when an injury is inflicted by a train in such proximity to a crossing that the giving of the signals could have been heard by a person lawfully on the track. Railroad Co. v. Raiford (Ga.) 9 S. E. 169; Cahill v. Railway Co. (Ky.) 18 S. W. 2.

By the charge of the court, the liability of appellant is conditioned upon the facts that appellee was in the hand car on the track with the knowledge and consent of appellant, and used due care and caution in discovering the approaching train and in leaving the hand car, and that appellant was guilty of negligence in failing to give a signal of the approach of the train at the road crossing, and that such negligence was the direct and proximate cause of appellee's injuries. Every phase of contributory negligence of which appellee might have been guilty was presented in the special charges asked by appellant and given by the court, and the jury were further instructed that, although appellant may have been guilty of negligence in failing to give the signal, yet, if appellee was also guilty of negligence, he could not recover. In fact, the liability of appellant is placed by the charge exactly as it desired it to be; that is, the same liability that it owed to any other member of the general public who was lawfully on the track. Complaint is made that this liability is not more fully presented by giving certain special charges, wherein it is reiterated that the liability of appellant to appellee was the same that it owed to the public; but the whole charge is based on that theory, and it was unnecessary to repeat it.

Objection was made to the introduction of rules for the guidance of locomotive engineers in giving signals before entering covered bridges and during fogs, purporting to have been issued by the Southern Pacific Company. So far as the general public was concerned, the negligence of the lessee was the negligence of the lessor. Their admission was objected to upon the ground alone that they were issued by the Southern Pacific Company, and this objection is not tenable.

It is complained that appellee was permitted to testify that nearly every train that came by while he was working near the place of collision had given the signals at the road crossing, and that he had heard them. The testimony was admissible. If the company had been in the habit of obeying the law in giving signals, appellee had a right to conclude that it would continue to do so. Railway Co. v. Gray, 65 Tex. 32; Cahill v. Railway Co. (Ky.) 18 S. W. 2.

We are of the opinion that it was not error to permit the appellee to testify that he could have heard the whistle had it been sounded on the morning of the disaster. The object in admitting opinions is to throw light on some obscure point, a knowledge of which is known peculiarly to the witness, and whose effect cannot be obtained by the jury in the absence of the opinion of the witness. Garteiser had told that he had worked for some time near the bridge; that he had seen many trains pass, and heard the whistle many times as it sounded near the road crossing as distinctly as though he had been close to it; that he was hurt on a foggy morning; and that sound could be heard better on a foggy morning than on a clear dry one; and that he did not hear the bell or whistle on the morning of the accident. After these facts had been stated to the jury, appellee stated that he could have heard the whistle had it been sounded or the bell had it been rung. As a general rule, the opinions of witnesses are inadmissible in evidence. Facts should be stated, and not inferences, opinions, or conclusions deducible from the facts. There are, however, exceptions to this general rule. Cases arise where it is a matter of impossibility to so detail the facts as to...