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

• Decision Date: 19 December 1894
• Citation: 29 S.W. 958
• Parties: GALVESTON, H. & S. A. RY. CO. v. CRAWFORD.<SMALL><SUP>1</SUP></SMALL>
• Court: Texas Court of Appeals

29 S.W. 958

GALVESTON, H. & S. A. RY. CO. v. CRAWFORD.¹

Court of Civil Appeals of Texas.

December 19, 1894.

Appeal from district court, Bexar county: W. W. King, Judge.

Action by J. F. Crawford against the Galveston, Harrisburg & San Antonio Railway Company to recover damages for personal injuries. Judgment for plaintiff, and defendant appeals. Affirmed.

Upson & Bergstrom, for appellant.

FLY, J.

This is a companion case to the Waldo Case, 26 S. W. 1004, Goodwin Case, Id. 1007, Norris Case, 29 S. W. 950, and Leonard Case, 29 S. W. 955, heretofore decided by this court, and grew out of personal injuries inflicted on appellee in a wreck that occurred at appellant's bridge on the Sabinal river, on the night of August 9, 1892. The verdict was for $7,500.

Conclusions of Fact.

On August 9, 1892, appellee, a man 36 years of age, weighing 190 pounds, and in good health, was an employé of appellant, and, being at Del Rio, Tex., was ordered by appellant to report at San Antonio. In obedience to the order, appellee, with his crew, boarded the caboose of a freight train and started for San Antonio. When the train was a short distance west of the Sabinal river, it ran at a rapid rate into a cut where the track was flooded with water, and, the wheels of the caboose striking loose planks that had floated onto the track from the road crossing and cattle guards, was derailed, and ran on the ties, until it reached the bridge over the Sabinal river, where it struck the west span, which gave way, and precipitated the caboose into the bed of the river, where appellee received the injuries of which complaint was made. The rainfall that flooded the track was not an extraordinary or unprecedented one, but, the track not being properly ditched through the cut, the loose planks on the crossing and the cattle guards were washed onto the track, and, the train being recklessly run by the engineer at a fast rate of speed, the caboose ran over the planks, and was derailed. Appellee was a conductor, and was receiving, at time of the wreck, $125 per month. Appellee received permanent injuries in the wreck, that greatly lessened his earning capacity. Appellee had no control of the train or connection with it, except to ride on it to San Antonio. The proper schedule time for the train was 24 miles an hour, but, at time of the derailment, it was running 40 miles an hour. Appellee had no knowledge of the defects in the appliances furnished by appellant.

Conclusions of Law.

During the sickness of Hon. W. W. King, the district judge, Hon. S. G. Newton was elected special judge, and having called this case for trial, and having organized a jury, the court was adjourned until the following week, when, the regular judge having appeared, he proceeded with the trial from the point at which the special judge had left off. No objection was interposed to this action by appellant at the time, and the first time any objection was heard was after a verdict had been rendered against appellant, in the motion for a new trial. It has been held by our supreme court that, when a special judge has begun a trial, it may be completed by the regular judge when he returns. Edwards v. James, 13 Tex. 52; State v. Womack, 17 Tex. 237. The same position has been heretofore taken by this court. Coles v. Thompson, 27 S. W. 46.

The first and second assignments of error are not well taken. There was no error in overruling the exceptions which attacked the sufficiency of the petition in stating the facts requisite to constitute a cause of action, and its sufficiency in alleging the defects in the track, roadbed, road crossing, cattle guards, ditches, and bridge, or how the defects contributed to or caused the injuries of which complaint is made. The petition alleges the falling of the bridge; that just west of the road crossing and cattle guards there was a deep cut and a steep grade; and that the ditches were not sufficient to carry off the water that would ordinarily gather about the track; and that the water accumulated on the track; and that the planks on the crossing were not nailed down, and the water floated them upon the roadbed, and derailed the car. The allegations are full, and amply sufficient to admit any proof as to defects in the road and bridge. It is not necessary to plead the whole of the testimony. The allegations in the petition are ample to apprise appellant of every issue it will be expected to meet, and sufficient is alleged, if proved, to justify a recovery. Nothing more can be demanded of the pleading. A general allegation of the defects was sufficient, without entering into any great particularity as to the exact condition of the track, roadbed, crossing, or bridge of appellant. Railway Co. v. Brinker, 68 Tex. 500, 3 S. W. 99; Railway Co. v. Smith, 74 Tex. 276, 11 S. W. 1104; Railway Co. v. Wilson, 79 Tex. 373, 15 S. W. 280. It is, however, argued by appellant, that the employé has no cause of action against the master except for his negligence, and such negligence cannot be presumed from the accident, and therefore the employé must set up the particular act of negligence more fully than a passenger is required to do. A number of cases are cited to support this position, but none of them tend to uphold the theory that more specific pleading is required from an injured employé than from any other person. Railway Co. v. Templeton (Tex. Sup.) 26 S. W. 1066. We have passed upon petitions containing almost the identical allegations in companion cases to this, and held them sufficient. Railway Co. v. Waldo, 26 S. W. 1004; Railway Co. v. Norris, 29 S. W. 950; and Railway Co. v. Leonard (decided at a former day of this term) 29 S. W. 955.

The following is copied into the brief as the fifth assignment of error: "The court erred in giving to the jury the first subdivision of its charge, which is as follows: `If you believe from the evidence that during a rainstorm, on or about the 9th of August, 1892, a wreck occurred on defendant's line of railway, at or near the defendant's bridge across the Sabinal river, in Uvalde county, and that in said wreck, during said storm, the plaintiff was injured as charged in his pleadings; and if you further believe from the evidence that the defendant had no track walker or sectionmen out on the track during said storm to guard against accidents; and if you further believe from the evidence that the engineer in charge of the engine that was attached to and pulling the train continued to run said train during said storm, and ran said train over the track of defendant company, while the same was under water, at a great speed, without stopping to examine the said track and ascertain its condition, and its condition could be seen by him in time to stop the train, and, while so running the train was derailed by planks and timbers that had floated on the track, and that in said acts on the part of said company and its employés the said company was guilty of negligence, as defined in this charge; and if you further believe from the evidence that the negligence, if any, on the part of defendant company and its employés, was the proximate cause of the plaintiff's injury,—then, and in that event, you will find a verdict for the plaintiff as hereinafter charged.' First. Because the court assumes and instructs the jury that the facts therein constitute negligence, and that question should have been submitted to the jury, and the court in said charge states that the plaintiff is entitled to recover for the said acts on the part of said company and its employés if the said company was guilty of `negligence' as defined in this charge, and `negligence' is nowhere defined, except that the facts set out and described in the first subdivision are...