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

• Decision Date: 14 December 1892
• Citation: 20 S.W. 955
• Parties: GALVESTON, H. & S. A. RY. CO. v. DANIELS.
• Court: Texas Court of Appeals

20 S.W. 955

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

Court of Civil Appeals of Texas.

December 14, 1892.

Appeal from district court, Bexar county.

Action by Bridget Daniels against the Galveston, Harrisburg & San Antonio Railway Company for negligence resulting in the death of Horace Daniels, plaintiff's husband. From a verdict and judgment for plaintiff, defendant appeals. Reversed.

Upson & Bergstrom, for appellant. Peter Shields, for appellee.

KEY, J.

1. Error was committed by the trial court, in stating to the jury the issues involved, in omitting to state some of the defenses interposed by appellant; but this was an omission, and, if appellant was not satisfied with it, a special charge should have been asked supplying the defect.

2. After submitting appellee's theory of the case, as alleged in her petition, the court instructed the jury as follows: "If, however, you believe the defendant corporation did, and had done, all that could be required to render said bridge secure and safe for the passage of trains, and that the destruction of said bridge, and the death of said Horace Daniels, were the result of an unprecedented rainfall, and of such a character that no human foresight or skill could provide against, you will find for the defendant." This charge is complained of, among other reasons, because it required of appellant a higher degree of care for the safety of its employes than is imposed by law. This objection is well taken, and must result in a reversal of the case. A master, whether a common carrier or not, is only required to exercise ordinary and reasonable care for the protection of his servant. Our supreme court, in considering the liabilities of railway companies to their employes, has frequently applied this doctrine, and held that in furnishing appliances for their use, or in constructing and keeping in repair roadbeds and bridges, the true test of liability is whether or not reasonable and ordinary care was exercised; in other words, whether or not the railroad company was guilty of negligence. Railway Co. v. Oram, 49 Tex. 341; Railway Co. v. Lyde, 57 Tex. 505; Railway Co. v. McCarthy, 64 Tex. 632; Railway Co. v. Bell, 75 Tex. 50, 12 S. W. Rep. 321. Ordinary care is such care as an ordinarily prudent man would exercise under the circumstances, and a failure to exercise such care is negligence. This charge required the jury, before they could return a verdict for appellant, to find — First, that it did all that could be required to render the bridge secure and safe for the passage of trains; and, second, that the destruction of the bridge, and the death of appellee's husband, were the result of an unprecedented rainfall, and of such a character that no human foresight or skill could provide against. The first part of this charge, though not accurate, as it omits the word "reasonably" before the word "required," certainly stated and submitted all that the law required of appellant, and it was error to state, as an additional prerequisite to a verdict for appellant, that the jury must also find that there was an unprecedented rainfall, and especially to require them to find that the rainfall was of such a character as no human foresight or skill could provide against. Even if the question of an unprecedented rainfall had been submitted disjunctively, the language in which it was submitted did not state the law correctly in cases of this kind. It must be borne in mind that the injured party was appellant's employe; that, when he entered the service in which he was engaged at the time of his death, he assumed all of the risks and hazards ordinarily incident to such service; that appellant is not liable to appellee for damages resulting from his death, unless the same was caused by appellant's negligence, as set out in appellee's petition; and that the burden rested upon appellee to prove, and not upon appellant to disprove, such negligence. In cases of loss or injury to freight, while in the custody of a common carrier, the rule is different. In such cases, the carrier is an insurer; and when sued for loss of, or damage to, freight received by it for transportation, all the plaintiff has to show is the delivery of his freight to the carrier, its loss or damage, and its value, or the extent of the injury; and then the burden is cast upon the carrier to show such facts as will relieve it from liability. And it is generally in this class of cases that the rules of law which determine liability for loss or injury resulting from natural phenomena, called in the law books the "act of God," are discussed. This arises out of the fact that in such cases proof of the utmost care and diligence will not excuse the carrier, and this and a few other special defenses are the only grounds upon which nonliability can be established. Lawson,...