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

• Citation: 48 S.W. 570
• Court: Supreme Court of Texas
• Decision Date: 22 December 1898
• Parties: GALVESTON, H. & S. A. RY. CO. v. DAVIS.

Page 570

48 S.W. 570

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

Supreme Court of Texas.

December 22, 1898.

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

Action by William Davis against the Galveston, Harrisburg & San Antonio Railway Company. From a judgment of the court of civil appeals (45 S. W. 956) affirming a judgment for plaintiff, defendant brings error. Reversed.

Upson, Bergström & Newton, for plaintiff in error. Ogden & Terrell, for defendant in error.

GAINES, C. J.

The assignment upon which we granted the writ of error in this case presents a very like question to that discussed in the case of Railway Co. v. Johnson (this day decided by us) 48 S. W. 568. We briefly state the case, and only in so far as it bears upon the questions we propose to consider: The son of the plaintiff, William Davis, was employed as a brakeman on one of the trains on defendant's road, and, while so employed, the train upon which he was engaged was run into by another train on the road, and he was killed. The action was brought by his father to recover damages for his death. The case was predicated in part, at least, upon the carelessness and incompetency of the conductor and engineer of the colliding train, and the negligence of the company in employing them and retaining them in its service. The name of the conductor was Sam Greene. As bearing upon his competency, a witness was permitted, over the objection of defendant's counsel, to testify as follows: That "Sam Greene was a drinking man," and also that witness "was the brother-in-law of Sam Greene, the conductor, Greene having married his sister; that Greene was a drinking man; that he would get drunk every time he got the money; that he was a drinking man, and drank to excess; that he never heard Greene's reputation as to his railroad qualities discussed; that he had the reputation of being a lazy, drinking man; that he sold him the liquor with which he got drunk." There was no evidence that the conductor was drunk at the time of the accident, and that he had ever been drunk while upon duty; and we think, under the rule announced in the case of Johnson v. Railway Co., above cited, the testimony objected to was clearly inadmissible. A man may be in the habit of getting drunk, and may abstain altogether while engaged in business. In such a case the proof of his habit would throw no light upon his competency or care while so engaged. A similar question was before the supreme court of Michigan in Langworthy v. Green Tp., 88 Mich. 207, 50 N. W. 130. The court state the point, and dispose of it, in the following language: "Plaintiff was asked on cross-examination if he had been drinking that evening, and he replied that he had taken one glass of beer. Defendant introduced a witness, and asked him what he could say as to plaintiff's being a drinking man,—whether he was addicted to the use of liquors. This testimony was properly excluded. The question is, what was plaintiff's condition as to sobriety at the time of the accident? It cannot be assumed that a drinking man, or one addicted to the use of liquors, is always drunk, or always in a condition which excludes the possibility of the exercise of due care." See, also, Heland v. City of Lowell, 3 Allen, 407; McCarty v. Leary, 118 Mass. 510.

Nor, in our opinion, did the fact that a rule of the company provided that "the use of intoxicating liquors is strictly forbidden," and declared that "total abstinence is necessary to safety in operating the road," make a difference in the case. It is clear that occasional use of intoxicating liquors while not on duty would not affect the competency of an employé. The rule was doubtless adopted out of abundance of caution, and should not be invoked to show negligence on part of the company. The same may be said of the testimony of an officer of the company to the effect that, if it had been known that Greene was in the habit of drinking to excess, he would not have been employed, and that, if he was an habitual drunkard, he had no business on the train. If an habitual drunkard, under the rule of the company he was improperly employed, but it does not follow that from his habit he was necessarily reckless or incompetent.

In course of the trial a witness was permitted to testify: "I left San Antonio, with Sam Greene as my hind brakeman, either in the fall of 1884 or the spring of 1885. Ran...