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

• Decision Date: 04 May 1898
• Citation: 45 S.W. 956
• Parties: GALVESTON, H. & S. A. RY. CO. v. DAVIS.<SMALL><SUP>1</SUP></SMALL>
• Court: Texas Court of Appeals

Page 956

45 S.W. 956

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

Court of Civil Appeals of Texas.

May 4, 1898.

Appeal from district court, Bexar county; J. L. Camp, Judge.

Action by William Davis against the Galveston, Harrisburg & San Antonio Railway Company for the death of plaintiff's son. From a judgment for plaintiff, defendant appeals. Affirmed.

We conclude that there is evidence in this record legally sufficient to support findings of fact in favor of plaintiff on issues involved, as follows: That plaintiff's son was, at the time of the injury (in 1886) resulting in his death, an employé of defendant; that his injury was occasioned by the acts of fellow servants, who were incompetent and unfit for the service in which they were acting; and that their incompetency and unfitness were known to defendant.

Upson, Bergstrom & Newton, for appellant. Ogden & Terrell, for appellee.

JAMES, C. J.

The circumstances of this misfortune are given in the former opinion of this court in this case reported in 23 S. W. 301, and we need not restate the same. James A. Barker, over defendant's objection, testified: "I left San Antonio with Sam Greene as my hind brakeman either in the fall of 1884 or the spring of 1885. Ran from here to Harwood, and then from Harwood to Gonzales. I pushed the train down from Harwood forward of the engine. We loaded some stock, and then pushed down to the depot to get our orders and waybills. Greene and I and the other brakeman went up to the engine, and while we were standing there Greene suggested setting the switch off the main track on which we were standing onto the side track, and let Geo. H.'s train in, as he was almost due from Harwood. I said, `No; you hang the red light on the hind end of the engine, and leave the switch where it is, and if he wants to throw the switch he can do it himself.' I then proposed that we go to supper, and paid no attention to Greene. Sullivan, the fireman, and I went to the boarding house, to get something to eat. Then we went up to the office, and found a telegram for me to go on; so I got my orders, and by that time it was after dark; and when we came out I supposed that everything was all right, and just as I had ordered it; but I asked Greene in particular, as I stepped in the caboose to get my lamp, `Greene, is everything all right?' He said, `Yes.' I then stepped out, and gave the signal to start. We ran off the track at the switch, which was found to be open. Greene acknowledged to have done it. It took me several hours to push the cars back, and give my engine a chance to work, and get her on the track. This was the first case that I saw of his recklessness, carelessness, and disobedience." There were various objections to this testimony, but it is to be considered by us in reference to the one proposition advanced, which is as follows: "The incompetency of a servant, or knowledge thereof on the part of the master, cannot be shown by proof of specific acts of negligence committed by the servant." It has been said in this state that a single act of negligence is insufficient to prove unfitness of a servant (Railway Co. v. Beeman, 74 Tex. 291, 11 S. W. 1102; Terrell v. Russell [Tex. Civ. App.] 42 S. W. 131): and appellant is, we think, correct in the further contention, which logically follows, that notice of such single act to the master is of itself not sufficient as notice of the employé's unfitness. But we are of opinion that such an act may be properly admitted, and considered in connection with other evidence of incompetency. It was proved that defendant was informed of this act at the time. It was pleaded that Greene, the conductor of the freight train which ran into the train upon which Davis was engaged, was incompetent to act as conductor of such train, and was a reckless, careless, and intemperate man, and that defendant knew of his incompetency, carelessness, recklessness, and intemperance, and that his said qualities were a cause of the accident. Besides the said testimony of Barker, showing an act of recklessness or indifference in his conduct as brakeman, there was testimony showing that in 1886, long before this occurrence, he was, while in defendant's employ, a very intemperate man, and that such was his general reputation among all who knew him. According to this evidence, the jury may properly have concluded that ordinary care with reference to his fitness must have led to defendant's knowledge of his habits. That intemperate habits alone were sufficient to make his incompetency for such service as he was performing is shown by the testimony of McQueeney, defendant's division superintendent. If defendant had knowledge, or was chargeable with knowledge, of the conductor's unfitness by reason of intemperance, the act of negligence on the occasion of the injury complained of would suffice to make defendant liable, negligent acts being fairly the outgrowth of such habits. This was a question for the jury. That this employé, about a year and a half previous, while a brakeman in defendant's employ, had caused a train to leave the track by recklessly leaving a switch open, of which fact defendant was then informed, was a fact proper to be considered, in connection with his well-known intemperate habits, in determining whether or not defendant had been negligent in retaining him in its employ, and particularly in having him in the responsible position of conductor of a train running as was the one in question.

The third and fourth assignments are as follows: "The court erred in allowing plaintiff's witness Jas. R. Burnett to testify, in answer to the following question propounded to him by plaintiff's counsel: `Will you please state to the jury what his habits were in regard to temperance or intemperance?' that `Sam Greene was a drinking man,' for this: That the said testimony was irrelevant to any issue made in the pleading in this case, was incompetent for any purpose, and did not tend in any manner to establish whether said Sam Greene was an incompetent, careless, or reckless conductor or not, as shown by defendant's bill of exception No. 2." "The court erred in permitting plaintiff to prove by his witness Jas. R. Burnett the general reputation of Sam Greene as to being a sober or intemperate man, for this: That said testimony was irrelevant to any issue made in the said cause; that it did not tend in any manner to establish whether the said Sam Greene was an incompetent conductor...