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

• Decision Date: 24 October 1894
• Court: Texas Court of Appeals
• Parties: GALVESTON, H. & S. A. RY. CO. v. DANIELS et al.<SMALL><SUP>1</SUP></SMALL>

28 S.W. 548

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

Court of Civil Appeals of Texas.

October 24, 1894.

Appeal from district court, Bexar county; G. H. Noonan, Judge.

Action by Bridget Daniels and others against the Galveston, Harrisburg & San Antonio Railway Company for injuries causing the death of Horace Daniels. Judgment for plaintiffs, and defendant appeals. Reversed.

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

FLY, J.

This is a suit brought by the surviving wife and child of Horace Daniels, who was killed by the collapse of a bridge over which he, as engineer, was propelling a locomotive and freight train. The case turns upon the question of the proper care upon the part of appellant in constructing and maintaining the bridge. This is a second appeal of the case, the first being reported in 1 Tex. Civ. App. 695, 20 S. W. 955. We will consider the assignments of error in the order presented in the brief.

In the 5th, 6th, 18th, 19th, 20th, 23d, 24th, and 25th assignments of error it is contended that the court erred in failing and refusing to present the issue that, if the railroad belonging to appellant was, at the time of the death of Horace Daniels, leased to the Southern Pacific Company, and said Horace Daniels was killed while in the employ of the said lessee, then appellant would not be liable in damages for the death of said employé, occurring in the course of his employment by the lessee. Several special charges embodying this theory were asked by appellant, and were refused. The statement of the issues made by the district judge in the charge is as full as the statement made in the answer by appellant, and this, it would seem, is as much as should be demanded by the pleader. The damages in this case are alleged to have arisen by reason of the improper and faulty construction of a certain bridge, which was alleged to be defective both as to materials and foundation. This allegation throws the responsibility directly upon the owner of the road, whose duty it is to properly construct its road, bridges, etc., and to use proper care in keeping the same in good repair. It is the well-settled doctrine in this state that a railroad company cannot evade its responsibilities to the public by leasing its road to another. Railroad Co. v. Underwood, 67 Tex. 589, 4 S. W. 216; Railroad Co. v. Morris, 68 Tex. 49, 3 S. W. 457: Railway Co. v. Rushing, 69 Tex. 306, 6 S. W. 834; Railway Co. v. Culberson, 72 Tex. 375, 10 S. W. 706. This position is maintained upon the ground that railroads, under their charters, assume certain obligations to the public, which cannot be evaded by a lease of their roads. The lessor roads are held responsible for the neglect of duty to the public by their lessees, and the public will not be called upon to inquire any further than the charter as to who will be liable. This is the doctrine so far as the general public is concerned; but our supreme court has held that the duties owed by a railroad to employés are not those common to the public, but grow out of the contract of service. Railway Co. v. Culberson, 72 Tex. 375, 10 S. W. 706. We thoroughly concur with that opinion in so far as it intimates that, if the injury had occurred by reason of a defect in the roadbed or track, the company charged with the duty of keeping up the road would be liable. This intimation of what the ruling of the court would be under the state of facts was afterwards crystallized into a clear and conclusive decision by the court, when the question of the liability of the lessor railroad to an employé of the lessee, by reason of defects in the road itself, was presented directly for adjudication. Railway Co. v. Lane, 79 Tex. 643, 15 S. W. 477, and 16 S. W. 18. In that case it is said: "There is no law of which we are advised that authorized the defendant to lease its line. * * * The defendant company, by accepting its charter, assumed the obligation to keep its track in safe condition for the operation of trains over them, and to do this is a duty it owes to all persons who are permitted by it to travel upon or operate trains over it." There was no written evidence of the lease, and the witnesses who testified to the fact of a lease did not testify that the duty of keeping the road and bridge in repair devolved upon the lessee, even if that fact could in any manner have lessened the responsibility of the owner of the road. The duty, however, no matter what the terms of the lease may have been, of keeping the road in repair, devolved upon the appellant, and there was no error in refusing the requested charges. F. B. Barber, a witness for appellees, was permitted to testify that he experienced frequent heavy rains in the canon or gulch over which the bridge that fell was built, and one that might be called a freshet, which testimony was objected to, because the witness had sworn that he never knew the canon until about three years after the wreck. The introduction of this testimony can be justified perhaps upon the ground set out in a decision of the supreme court of Texas in the case of Railway Co. v. Holliday, 65 Tex. 513. As said in that case, if this had been the only proof that great freshets had come in that section, it would have been inadmissible; but coming, as it does, after other proof of former freshets, it showed a continued liability to such occurrences at and about the time the bridge was built? But if, under the operation of such a rule, the testimony was inadmissible, no harm could have resulted to appellant, for the reason that the same testimony, in effect, was introduced by appellees without objection from appellant. The witness R. A. White swears that a rain fell on October 3, 1886. Again, the testimony was permissible in rebuttal, as several of appellant's witnesses swore that there was no freshet after the wreck. Kruttschnitt goes so far as to swear that no such freshet occurred for seven years after the wreck. After giving a detailed and full account of an examination made of the bridge immediately after the wreck, and of the bed of the canon approaches, timbers, foundations, etc., witnesses A. F. Dignowity and Charles Emerly were permitted to give an opinion as to what caused the wreck; and appellant assigns this action of the court as error, because it was merely the opinion of witnesses, who had not qualified themselves as experts. This identical question was urged on a former appeal of this case (1 Tex. Civ. App. 695, 20 S. W. 955); and it was held that the assignment was untenable. In that opinion the cases of Railway Co. v. Jarrard, 65 Tex. 560, and Railway Co. v. Locker, 78 Tex. 279, 14 S. W. 611, are cited, as supporting the opinion. In the Jarrard Case, Judge Robertson, rendering the opinion, says: "A juror would be as competent as the witness to form an opinion, if he had seen what the witness saw, but what the witness observed cannot be reproduced, and made palpable in the concrete to the jury." The reason for admitting the opinion is based upon the idea that it was impossible in any other way to place the whole matter before the jury. In the case of Railway Co. v. Locker the witness had been asked why was it the waters of the Bosque did not flow in 1887 as they did formerly, and in answer the witness gave his opinion. The court says: "The witness having apparently fully stated all the facts upon which this...