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

• Decision Date: 17 December 1900
• Citation: 59 S.W. 870
• Parties: GALVESTON, H. & S. A. RY. CO. v. NASS et al.
• Court: Texas Supreme Court

Page 870

59 S.W. 870

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

Supreme Court of Texas.

December 17, 1900.

Error to court of civil appeals of Fourth supreme judicial district.

Action by J. H. Nass against the Galveston, Harrisburg & San Antonio Railway Company and cross petition by defendant against the International & Great Northern Railway Company for judgment over.A judgment in plaintiff's favor against defendant and over against the International & Great Northern Railway Company was affirmed as to defendant, and reversed as to the cross defendant, by the court of civil appeals (57 S. W. 910), and defendant brings error.Affirmed.

Upson, Newton & Ward, for plaintiff in error.J. R. Norton, Perry J. Lewis, and H. C. Carter, for defendant in error Nass.N. A. Stedman and Denman, Franklin, Cobbs & McGown, for defendant in errorInternational & G. N. Ry. Co.

BROWN, J.

J. H. Nass sued the Galveston, Harrisburg & San Antonio Railway Company for damages arising out of personal injuries received by him while in the employ of the company as brakeman on its train, which injuries occurred through the breaking of a handhold upon the car on which he was working.The car belonged to the International & Great Northern Railway Company, a connecting carrier, which had delivered the car to the Galveston, Harrisburg & San Antonio Railway Company to be by it delivered at the point of destination on its line.The Galveston, Harrisburg & San Antonio Railway Company pleaded over against the International & Great Northern Railway Company, making it a partydefendant, and asking for judgment against it for whatever amount Nass might recover in that suit.From the conclusions of fact filed by the court of civil appeals, we make the following statement: The car was the property of the International & Great Northern Railway Company, and was transferred and delivered to the Galveston, Harrisburg & San Antonio Railway Company at San Antonio, to be by the latter company transported on its line to its destination.The Galveston, Harrisburg & San Antonio Railway Company made inspection of the car at the time of receiving it, but the inspection was not properly and carefully done.When Nass was attempting to climb upon the car in the discharge of his duty, a handhold broke loose, the wood to which it was attached being rotten, and caused him to fall upon another track, striking the small of his back on a rail, thereby inflicting a serious injury.The inspector of the International & Great Northern Railway Company had, on the same day, and before the delivery of the car to its connecting carrier, inspected it.The defect was such as could have been discovered by a careful inspection.There was no agreement between the two companies which would require the delivering company to respond to the other in respect to unsafe cars that might be delivered.No partnership existed between the two roads in reference to the hauling of cars.Upon the trial the judge instructed the jury that, in case they should find any sum in favor of the plaintiff against the Galveston, Harrisburg & San Antonio Railway Company, they would also find in favor of that company the same sum against the International & Great Northern Railway Company.The jury returned a verdict in favor of the plaintiff against the Galveston, Harrisburg & San Antonio Railway Company and in favor...