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

• Decision Date: 22 December 1898
• Citation: 48 S.W. 563
• Parties: GALVESTON, H. & S. A. RY. CO. v. ZANTZINGER et al.
• Court: Texas Supreme Court

48 S.W. 563

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

Supreme Court of Texas.

December 22, 1898.

Certified questions from court of civil appeals of First supreme judicial district.

Action by V. F. Zantzinger and another against the Galveston, Harrisburg & San Antonio Railway Company. Judgment for plaintiffs, and defendant appealed, and the court of civil appeals certified questions to the supreme court. Affirmed.

A. L. Jackson, for appellant. Baldwin & Meek, O. T. Holt, and J. H. Davenport, for appellees.

GAINES, C. J.

The court of civil appeals for the First supreme judicial district has certified for our decision the following questions:

"The plaintiffs, Mrs. E. S. Zantzinger, who is joined in this action by her husband, is the mother of Almer Campbell, a minor; and the suit is in her own behalf, as well as in behalf of her son, to recover damages for personal injuries sustained by him, as it is claimed, through the negligence of the appellant, who was defendant below. The evidence adduced at the trial showed that defendant had a train of cars attached to the front end of a switch engine, which was running backwards, pulling the cars after it, into the city of Houston, from a neighboring station. The switch engine had no pilot or cowcatcher in front of it, but attached at each end was a footboard, extending across the track. The car nearest the engine was a flat car, several feet intervening between it and the footboard. While the train was slowly moving, Almer Campbell, without permission of any one, and contrary to the rules of the company, entered upon the footboard, for the purpose of riding into Houston, and stood upon it, between the engine and flat car. After he had ridden a short distance the cylinder cock of the engine was opened by the engineer, and hot water and steam were thereby thrown upon his legs and feet, whereupon he sprang from the footboard towards the flat car, intending to get upon the latter, but missed it and fell upon the track, and was run over and injured. There is evidence tending to show that the cylinder cock was opened by the engineer for the purpose of throwing the steam and water upon the boy, in order to make him get off the engine; but the evidence does not warrant the conclusion that the engineer intended more than this, or that he intended to injure Campbell in the way in which he was injured. The engineer had authority to eject persons wrongfully riding upon the engine. There is also evidence tending to show that the fright and pain caused to Campbell by the steam and water also caused him to lose his presence of mind, and to make the leap in order to escape. The steam and water caused pain and fright, but did not injure the skin. He testified that he was facing the engineer, with his back to the flat car, and that after the escape of steam and water commenced he turned and made the leap, calculating to reach the flat car with his feet, but not his hands; that after he fell between the cars he crawled forty or fifty feet in the direction in which the train was moving, in order to avoid the brake beam under the flat car, and then attempted to get across the rail, and was caught. There is also evidence tending to show that the engineer saw Campbell fall between the cars, knew his danger, and could have stopped the train in time to have avoided the injury. This we do not regard as affecting the questions certified. The evidence is uncontradicted that in getting upon the footboard Campbell was a trespasser, and was guilty of negligence, and the court below so instructed the jury. He was nearly seventeen years of age, and understood the dangers and risks of the situation. The charge given below submitted only two grounds upon which the plaintiffs could recover, and carefully restricted the jury to them. The first is stated in the charge set out below, and the second submits the question whether or not the engineer, after discovering Campbell's danger, used proper care to prevent the injury. As to the latter we deem it unnecessary to state more. The charge referred to is as follows: `You are instructed that if you find from the evidence that, at the time and place stated in plaintiffs' petition, Almer Campbell got upon the footboard or runningboard attached to the engine then being operated on defendant's line of railway by its agents and servants, and that while the said Almer Campbell was standing upon said footboard, and while said engine and train of cars were in motion, the defendant's engineer in charge of said engine, by means of the cylinder cocks attached to said engine, caused hot water or steam to be thrown upon said Almer Campbell's person, for the purpose of frightening or scaring him off the engine, and that the opening of the cylinder cocks for the purpose of letting out the hot water or steam was done for the purpose of throwing the water upon said Almer Campbell, and not in the operation of the engine; and you further find that to eject Almer Campbell from his position on the footboard of the engine was within the scope of the duty of said engineer in operating the engine, and that he had implied authority to do so, and that said act on his part, of throwing the water or steam on Almer Campbell, was negligence, as herein defined; and if you further find that hot water or steam so thrown on said Almer Campbell so frightened him, or caused him such pain, that in order to escape therefrom he made an attempt to jump upon the flat car in front of the engine, and fell upon the track, where the wheels of said car passed over his leg, injuring him substantially as set out in the petition; and you further believe that the said acts of the engineer in turning the hot water or steam upon the said Almer Campbell was negligence, as hereinafter defined, and was the proximate cause of the said accident,—you will find for the plaintiffs.'

"The questions certified are as follows: First. Should the act of the engineer in throwing out the steam and water for the purpose of ejecting Campbell from the engine be deemed willful, in its relation to the result which actually followed, but was not intended, so that the negligence of Campbell in placing himself in such a position, without which he would not have received his injury, cannot be considered contributory negligence, or should such act of the engineer be regarded as only a negligent cause of such injuries, with which the negligence of Campbell may be considered as contributing to the result? Second. Should the court, in applying to the facts of this case as above stated the rule announced in Railway Co. v. Neff, 87 Tex. 303, 28 S. W. 283, have assumed that Campbell's act in making the leap described was not contributory negligence, and that he was excused by the act of the engineer and the other facts of the...