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

• Decision Date: 03 January 1912
• Citation: 143 S.W. 252
• Parties: GALVESTON, H. & S. A. RY. CO. v. SALISBURY et al.<SMALL><SUP>†</SUP></SMALL>
• Court: Texas Court of Appeals

143 S.W. 252

GALVESTON, H. & S. A. RY. CO. v. SALISBURY et al.^†

Court of Civil Appeals of Texas. San Antonio.

January 3, 1912.

Rehearing Denied January 31, 1912.

Appeal from District Court, Bexar County; Edward Dwyer, Judge.

Action by Alice K. Salisbury and others against the Galveston, Houston & San Antonio Railway Company. From a judgment for plaintiffs, defendant appeals. Affirmed.

Baker, Botts, Parker & Garwood, Howard Templeton, and W. F. Ezell, for appellant. Sam C. Lackey, Perry J. Lewis, and H. C. Carter, for appellees.

JAMES, C. J.

The action is by Alice K. Salisbury, widow of Joseph F. Salisbury, suing for herself, and as guardian of Jean F. Salisbury, a minor, and by the First State Bank & Trust Company of Cuero, as guardian of Bertha E. Salisbury, a minor, to recover of appellant damages for the death of Joseph F. Salisbury, father of said minors, and husband of plaintiff Alice.

It was alleged that Salisbury was an engineer, operating one of defendant's engines on a passenger train between Houston and Cuero, which train was derailed and wrecked about a mile before reaching the station of Telfener, by an animal on the track, which occurrence caused his death. Two grounds of negligence of defendant were alleged: First, that the track was fenced, and defendant had negligently failed to maintain the fence in such condition as to turn stock, whereby the animal got upon the track; and, second, that the engine was equipped with an electric headlight, and defendant had negligently permitted the same to be in such defective condition that it would not burn thereby obscuring the view of the engineer and causing him to strike the animal.

Defendant pleaded demurrers and the general issue; that the animal was not upon the track through defendant's negligence or any defect in the fence; that the engine had a proper headlight; that the same failed several hours, and at a considerable distance from the place of the wreck, without any fault of defendant, said failure being due to some other cause, or some act or omission of Salisbury; that when it failed Salisbury put a lantern in the headlight house, and voluntarily proceeded on his run, knowing the risk and danger incident thereto and the probability of encountering stock on the track, at an excessive and dangerous speed, and upon these allegations defendant based defenses of contributory negligence and assumed risk. Defendant also had allegations to show that the accident was produced by conditions which could not reasonably have been foreseen or anticipated by it. There was a verdict of $9,500 for the widow, of $7,000 for the minor Bertha, and $9,500 for the minor Jean.

The first assignment of error complains of the overruling of a special demurrer to that part of the petition relating to the fencing of the right of way and the duty of defendant to maintain the fence, upon the objection that the same is insufficient to disclose any actionable negligence on the part of defendant. The second and third assignments embody substantially the same matter.

The part of the pleading to which these exceptions were directed reads as follows: "That the defendant had a fence, inclosing its right of way, near and in the vicinity of where the wreck occurred, and it was the duty of the defendant to maintain the said fence so as to prevent stock and animals from getting upon the right of way and track upon which its trains were run, and thereby endangering same, but, in violation of this duty, the defendant negligently permitted the said fence, near and in the vicinity of where the wreck occurred, and it was the duty of the defendant to maintain the said fence so as to prevent stock and animals from getting upon the right of way and track upon which its trains were run, and thereby endangering same, but, in violation of this duty, the defendant negligently permitted the said fence, near and in the vicinity of the wreck, to become out of repair and insufficient to keep stock from getting upon the said right of way and track, and, by reason of the negligent manner in which the said fence was maintained as aforesaid, an animal of some kind went in upon the defendant's said right of way and track, and the said train came into collision with the said animal, and was thereby wrecked and derailed, and the death of the said Joseph F. Salisbury thereby caused, and this negligence directly caused and contributed to the death of the said Joseph F. Salisbury." The above was, in substance, an allegation that defendant had constructed a fence, inclosing its right of way, and failed to maintain same in such manner as to prevent the entering of stock, which was alleged to be negligence, as an omission of duty, on the part of defendant in reference to this engineer.

The propositions advanced embody the following contentions: That our statutes do not require railway companies to fence their tracks, and the statutes on the subject have in view the protection of inclosures, and therefore, because defendant had fenced its track, it owed its employés no duty in reference to maintaining the fence it had constructed; that to impose upon defendant the duty to its employés operating trains to maintain a fence it has constructed, so as to turn stock, it must appear that there existed facts and conditions sufficient to show that the danger to said employés, incident to operating trains, was increased by the failure to maintain the fence, and the allegations did not state facts and conditions sufficient to indicate the existence of such a duty. We think it is needless for us to discuss this question at any length. The views of this court are expressed in Quill v. Railway, 93 Tex. 616, 55 S. W. 1126, Railway v. Thompson, 34 Tex. Civ. App. 67, 77 S. W. 439, and we refer, also, to the opinion of the Supreme Court, in Railway v. Quill, 92 Tex. 335, 48 S. W. 168.

A railway fencing its right of way creates changed conditions, which enter into and affect the work done by its employés who operate its trains, and enter into and affect the degree of care that such employés would ordinarily exercise in the performance of their work. When we speak of dangers ordinarily incident to the work, it has reference to the work done, in view of the premises and conditions with which the master surrounds the servant. And when we speak of ordinary care of the master or of the servant it has reference to such conditions; and those conditions are to be considered in either case, in determining their duties to each other. When the railway company has not fenced its track, those operating trains would be expected to do so, having due regard to that fact, which makes certain vigilance necessary that may, in the exercise of ordinary care, and naturally would, be omitted, where the master furnishes a track that is fenced. The track being fenced, the required degree of care on the part of an engineer to avoid animals on the track is different than where there is no fence; and the failure, where there is a fence, to maintain it, and thereby admitting animals to the right of way, creates a condition calculated to greatly increase the danger to the employé; and this gives rise to a duty on the part of the master to the employé to exercise ordinary care to conserve the conditions under which the latter is performing his work, and the failure to do so is actionable negligence.

The petition alleged that Salisbury was acting in the discharge of his duties, and in the exercise of all due care, when injured; that plaintiffs were unable to allege more specifically the facts constituting the acts of negligence, as the facts were not in their possession, and were particularly within the possession of defendant. We are of opinion that the petition sufficiently stated a prima facie case, founded on negligence of defendant, in regard to the maintenance of the fence, and we overrule assignments 1, 2, and 3.

The fourth and fifth assignments complain of the first paragraph of the charge, because there was no evidence showing or tending to show the existence of such facts, circumstances, and conditions as would create any duty on the part of defendant to maintain the fence, so as to exclude stock from the track.

We conclude, as a matter of fact, that the testimony disclosed such duty and warranted the giving of the charge. It requires no discussion to show that the failure to...