Gulf, C. & S. F. Ry. Co. v. Compton

• Decision Date: 28 January 1890
• Citation: 13 S.W. 667
• Parties: GULF, C. & S. F. RY. CO. <I>v.</I> COMPTON.
• Court: Texas Supreme Court

13 S.W. 667

GULF, C. & S. F. RY. CO.

v. COMPTON.

Supreme Court of Texas.

January 28, 1890.

Appeal from district court, Wharton county; WILLIAM H. BURKHART, Judge.

J. W. Terry, for appellant. Brady & Ring and Parker & Pearson, for appellee.

GAINES, J.

This suit was brought by appellee against appellant to recover damages for injuries resulting in the death of Alexander Compton, her minor son. His death was alleged to have been caused by the negligence of the defendant company. The son was 18 years old at the time of the accident, and had, with the consent of plaintiff, been employed by defendant in its shops as a "wiper," whose duty it was to clean engines. On the afternoon of the day of his death, he was sent out on a water train as fireman. The train left Galveston about 4 o'clock P. M., and ran to Duke, a station four miles north of the city. Upon the return trip, at about 9½ o'clock at night of the same day, it collided with a passenger train running north. The plaintiff's son was killed by the collision. The accident occurred south of the station known as "Alvin" and north of that known as "Hitchcock." The train consisted of 11 water-cars and an engine, and was operated on the trip by an engineer named Hitchcock, Alexander Compton, who acted as fireman, and one brakeman. The plaintiff adduced testimony tending strongly to show that it was a general custom among railroad companies to man such trains with a conductor, an engineer, a fireman, and at least one brakeman, and that it was not regarded as prudent to run such a train without such employes. The facts were very fully alleged in the petition, and the negligence of the company in failing to send out a conductor in control of the train was charged to be the proximate cause of the injury. The defendant pleaded a general demurrer, and specially answered that the accident was caused by the negligence of Hitchcock, the engineer, who was the fellow-servant of Alexander Compton, the deceased, and that therefore the plaintiff could not recover.

During the progress of the trial, defendant's counsel offered to prove by a witness the following facts: That he (the witness) was present at Duke station in the afternoon of the night of the 18th of November, just before the water train which afterwards collided with the passenger train left Duke for Galveston, and that he heard the following conversation between the operator at Duke and a man who got off the engine of the water train, who was either the engineer or fireman: The operator told the man he ought to meet the passenger train at Alvin. The man then said to the operator: "I am hungry. Can't we make Hitchcock?" a station south of Alvin and south of Halls; to which the operator said: "No." The man then got on the engine, and the train departed in the direction of Galveston. When the witness was asked how he knew that this man was the engineer or fireman, he stated that he did not remember the appearance of the man well enough to describe him. He looked like he had been working on the engine. He got off the engine, had the conversation with the telegraph operator, then got back on the engine, and went off with the engine. The plaintiff objected to the testimony on the grounds "(1) that it was hearsay; and (2) that the witness did not identify the man as the engineer." The evidence was excluded. We are of opinion that this was error. The testimony tended to prove that an order was given to the person in charge of the train to stop at Alvin, and to await the passage of the north-bound passenger train, and that his desire was to hasten forward, and to meet the latter train at Hitchcock. Therefore, its tendency was to show that the accident was the result of the negligence of the engineer. The conversation was a part of the transaction, and was, as such, admissible. It was, therefore, not hearsay, as is claimed in the first ground of objection. Railway Co. v. Collier, 62 Tex. 318. The second ground of objection was not more tenable. The witness, it is true, did not know the engineer, and could not describe him; but the facts that there were but two persons on the engine, that the man in question left the engine apparently for instructions, and immediately resumed his place upon it, and that the engineer was the proper person to receive the orders, together with the conversation itself, were circumstances which, taken together, tended very strongly to show that he was the engineer. If the engineer believed that he could reach Hitchcock before meeting the passenger train, and if he attempted to accomplish this contrary to his instructions, and thereby caused the collision, then the accident was not the result of the failure to provide the train with a sufficient number of men to operate it safely in every emergency, but was proximately caused by the engineer's own negligence. It is insisted on behalf of appellee that, if the company was negligent in sending out the train without a conductor, and the collision would not have occurred if the conductor had been sent, it is liable for the injury notwithstanding the engineer may have been negligent. But we are not of that opinion. We think that, if the accident would not have happened but for the negligence of Hitchcock, his want of care was the proximate cause of the injury, and that the result cannot be imputed to the negligence of the defendant in failing to provide a conductor for the train. For this reason, we think the testimony which was excluded was relevant and material, and, being legal, that its exclusion is error for which the judgment must be reversed.

Since the judgment is to be reversed, we consider it unnecessary to discuss at length the correctness of that part of the charge of the court which is complained of in appellant's third assignment. We think the charge is objectionable because it gives too much prominence to the alleged custom of other railroad companies to send out trains equipped with a conductor in addition to the engineer and brakeman. We are of opinion that the mere fact that railroad companies generally adopted such a custom would not make it negligent in the defendant company to fail to observe it, provided its method of operating its trains was, in point of fact, reasonably safe. The paragraph of the instructions in which the law is applied to the facts of the case is as follows: "If you believe from the evidence that an established rule, custom, or usage prevailing in the railway service in Texas on properly regulated railroads was violated in the sending out of...