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

• Decision Date: 10 January 1894
• Citation: 25 S.W. 486
• Parties: GALVESTON, H. & S. A. RY. CO. et al. v. CROSKELL.<SMALL><SUP>1</SUP></SMALL>
• Court: Texas Court of Appeals

25 S.W. 486

GALVESTON, H. & S. A. RY. CO. et al. v. CROSKELL.¹

Court of Civil Appeals of Texas.

January 10, 1894.

Appeal from district court, Bexar county; W. W. King, Judge.

Action by Joseph Croskell against the Galveston, Harrisburg & San Antonio Railway Company and the Texas & Pacific Railway Company for damages for personal injuries. Judgment was rendered in favor of plaintiff, and defendants appeal. Affirmed.

Upson & Bergstrom and Barnard & Green, for appellants. Denman & Franklin, for appellee.

NEILL, J.

This appeal is from a judgment of $9,000, recovered by appellee against appellants for personal injuries caused by the alleged joint negligence of appellants. From the evidence contained in the record we have reached the following conclusions of facts:

(1) On the 15th day of July, 1889, and for several years continuously prior thereto, the Galveston, Harrisburg & San Antonio Railway Company owned and operated a railroad extending from the city of Houston to El Paso, Tex., during which time the Texas & Pacific Railway Company used the part of the track extending from Sierra Blanca to El Paso for running its trains jointly with the Galveston, Harrisburg & San Antonio Railway Company. The two roads employed jointly all employes who performed services only on the track between said stations, such as trackmen, laborers, foremen, road masters, station employes, telegraph operators, train dispatchers, and superintendents, but the men running the trains of the respective companies were not so employed. During the year 1889, R. H. Innes was superintendent, at El Paso, of both appellants, for the road used jointly by them. (2) Malone siding, which is between Sierra Blanca and El Paso, is on the side of a mountain, and the road there is on a grade of 60 feet to the mile, which slopes towards the west. The grade there would be from 120 to 130 feet to the mile, if it was not for the fact that the track is constructed on a curve. There was then a side track at Malone, which would hold 30 or 40 cars 35 feet long. The side track is connected with the main track by a split switch, which is one so constructed that a car will run from the side track onto the main track, the weight of the car in motion opening it. A stub or safety switch is one placed on a side track above a split switch, disconnecting one rail, so that all loose cars on the side track would be derailed before reaching the split switch connecting the side track with the main track. There had been a safety switch at Malone siding, but it was removed, and the split switch put there in lieu of it, by direction of Superintendent Innes, a short time prior to July 15, 1889. Appellee knew that a stub switch had been there, and did not know, at the time of the accident, that it had been removed. (3) On the 15th of July, 1889, three cars loaded with cross-ties were moved by a conductor of the Galveston, Harrisburg & San Antonio Railway Company, by the order of Superintendent Innes from Sierra Blanca, and placed on the side track at Malone about 75 feet from the east end of it. At the time they were placed there, only one brake on them could be used. (4) About 9 o'clock p. m. on the 15th of July, 1889, J. S. Cherry, then a locomotive engineer of the Texas & Pacific Railway Company, by orders given him by Superintendent R. H. Innes negligently ran his train on the side track at Malone, and against said three cars thereon, and tried to couple them to his engine, but failed, by reason of which the three cars were pushed off the side track, and started west towards Finlay, and collided with a Galveston, Harrisburg & San Antonio train coming in an opposite direction, 10 miles west of Malone. After the cars started off the side track, Mr. Cherry attempted to stop them, but, owing to the condition of the brakes, — the wheel of one being off, the staff of another being so bent that it could not be used, and the ratchet wheel of the other being gone, — failed to do so. (4) The appellee was the fireman on the Galveston, Harrisburg & San Antonio train that came in collision with the three loose cars from Malone. At the time of the collision he was in the employ of the Galveston, Harrisburg & San Antonio Railway Company, and his train had left Finlay in obedience to orders, and was running at the rate of about 25 miles per hour. He was seriously injured in the wreck caused by the collision, being badly scalded, having his ribs broken, and his hand and arm badly burnt. He was 30 years old at the time of his injuries, was in good health, and able to fully discharge his work as fireman. Since that time he has been unable to perform such work. (5) The injuries received by appellee resulted proximately from the joint and concurrent negligence of appellants.

Conclusions of Law.

1. Both appellants filed general exceptions to appellee's petition, which were overruled, and assign as error the action of the court in doing so. The conclusions of fact arrived at by us are substantially alleged by appellee as his cause of action, and we believe they constitute a good one against both appellants. That the liability of both appellants follows from the allegations made against them by the appellee is so clear to our minds that we deem it wholly unnecessary to discuss the proposition.

2. The Galveston, Harrisburg & San Antonio Railway Company specially excepted to appellee's petition, upon the ground that it shows upon its face a misjoinder of defendants and causes of action. The overruling of this exception is assigned as error upon the ground "that it appears from the petition that the proximate cause of plaintiff's injury was the negligence alone of the defendant the Texas & Pacific Railway Company in running one of its trains against the three cars, and thereby causing the collision which occasioned said injury." We draw a different conclusion from the allegations. In our opinion they show, as contended by appellee, that the injury received by him resulted proximately from the joint and concurrent negligence of appellants, and, as a legal consequence, they are liable to him jointly and severally therefor. Markham v. Navigation Co., 73 Tex. 249, 11 S. W. 131; Railway Co. v. McWhirter, 77 Tex. 360, 14 S. W. 26; Tompkins v. Railway Co., (Cal.) 4 Pac. 1165; Railway Co. v. Peyton, 106 Ill. 534; Railroad Co. v. Dorsey, 25 Amer. & Eng. R. Cas. 445; Railway Co. v. Jones, 75 Tex. 151, 12 S. W. 972.

3. In his petition the appellee alleged "that said track [meaning the side track at Malone] could easily have been so constructed that a car could not have run off same onto said main track in the direction of Finlay without the assistance of some person to set the switch so as to turn same onto said main track; that such result could easily have been obtained by placing in said side track what is known as a `stub switch,' which is so constructed that it disconnects the track, so that a car will run off on the ground instead of on the main track, unless some person sets said stub switch so as to allow the car to pass by same in its course down the side track onto the main track; that, at the time of the injuries hereinafter complained of, said side track was constructed as aforesaid, without any stub switch to prevent loose cars in motion from running off said side track onto said main track as aforesaid, and without any other means or appliances to prevent that result, and had been in that condition for a long time previous thereto; that both of said defendants, at the time of the injuries hereinafter complained of, had full knowledge of all the facts aforesaid, and had such knowledge long previous thereto; that notwithstanding the great and apparent danger of the cars running off said side track onto the main track as aforesaid, and colliding with other cars between said Malone siding and Finlay, and the full knowledge thereof on part of each of said defendants, they each negligently failed and refused to place a stub switch or other appliance from said side track onto said main track as aforesaid, and thus colliding with other cars, to the great danger of employes of defendants and passengers on such trains of cars, but negligently, willfully, and recklessly, at the time of the injuries hereinafter complained of, were each running and operating several freight and passenger trains daily over said route and road between said Malone and Finlay stations, conveying much valuable property and many passengers thereon, all of which, as well as the employes of each of defendants, were greatly imperiled by the failure of defendants, and each of them, to provide some means of preventing the escape of cars which were often, in the conduct of the business of said defendants, left standing and loose on said side track, liable to run off of same onto said main track, and down said decline, wrecking and destroying everything it chanced to meet in its mad career." Both appellants specially excepted to the foregoing part of appellee's petition, and moved the court to strike it out, and they now assign the action of the court in overruling their exception as error. It is true that the law does not impose on railroads, as a duty to their servants, to have the best and safest roadbed and appliances, but the obligation of the master not to expose the servants, when conducting his business, to perils from which they may be guarded by proper diligence on his part, rests upon them. It is implied in the contract between the parties that the master shall supply the physical means and agencies for the conduct of his business, and that he shall not be wanting in proper care in selecting and maintaining such means and agencies. He is not held as guarantying or warranting their absolute safety or perfection, but he is bound to exercise the care which the exigency reasonably demands in furnishing such as is adequate and suitable, and in keeping and maintaining them in such condition as to be reasonably safe for use....