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

• Decision Date: 13 January 1900
• Citation: 55 S.W. 538
• Parties: GULF, C. & S. F. RY. CO. v. DELANEY et al.<SMALL><SUP>1</SUP></SMALL>
• Court: Texas Court of Appeals

55 S.W. 538

GULF, C. & S. F. RY. CO. v. DELANEY et al.¹

Court of Civil Appeals of Texas.

January 13, 1900.

Appeal from district court, Tarrant county; Irby Dunklin, Judge.

Action by Jessie Delaney and another against the Gulf, Colorado & Santa Fé Railway Company. Judgment for plaintiffs, and defendant appeals. Affirmed.

Spencer & Kincaid and J. W. Terry, for appellant. Wynne, McCart & Bowlin and R. L. Carlock, for appellees.

STEPHENS, J.

William Delaney was killed October 15, 1897, about one mile north of Crowley, in Tarrant county, Tex., by the falling of two derricks situated on appellant's right of way, which were then being used to unload a car of heavy stones. He was in the service of appellant as freight brakeman, and was the head brakeman on the train which was being so unloaded. This suit was brought by Jessie Delaney, his widow, and William Delaney, his son by a former wife, from whom he had been divorced, to recover damages on account of the loss sustained by them in his death. The trial resulted in a verdict and judgment for them, each, in the sum of $5,000, from which this appeal is prosecuted.

The derricks (one on each side of the track) were fastened together overhead by wire ropes, and were steadied by guy ropes fastened to posts in the ground. The post on the west side of the track, which was only a fence post, had decayed, it seems, where it went into the ground, and consequently broke in two, and the post that held the guy rope on the east side of the track pulled up, so that, in lifting the heavy stones, both derricks fell; and, in the fall, Delaney was caught across the stomach by one of the wire ropes which held the derricks together overhead, and received the injuries of which he died in about one hour and a half. The train on which Delaney was brakeman had just been placed in position for unloading the stones, and the crew, including Delaney, who was on a car of cross-ties just ahead of the car of stone, were watching the men unload the latter; it being the business of the train crew to take care of the train, and place it in proper position for unloading, but not to unload it themselves. This was done by the men then engaged in an extensive betterment of appellant's road bed and track under a contract originally entered into with appellant by Ricker, Lee & Co. for that purpose, and afterwards sublet in part to John Buckley, who was prosecuting the work at the time and place of the accident. This contract contains numerous articles, and is set out in full in appellant's brief. Upon it is founded the main contention of appellant, that the railway company was not liable, because the work was being done for it by independent contractors. We find, however, in the seventh article the following: "The contractor will carry on and prosecute the work in such manner, at such times, and at such points or places as the chief engineer of the company shall direct;" and in the ninth, the following: "Any person in the employ of the contractor, or any subcontractor, who, in the opinion of the chief engineer of the company, shall not perform his work in a proper manner, or shall be riotous, disrespectful, intemperate, disorderly, or otherwise troublesome, shall, at the written request of the chief engineer, be forthwith discharged by the contractor." Other articles contain provisions of like import. But, if the contract had contained no such provisions, we must yet hold appellant's obligation to its own servants, while engaged in operating its own trains over its own track, to furnish them a reasonably safe place to work, inhered in the very contract of employment, and that nothing short of the exercise of reasonable care and diligence on its part to discharge that duty would absolve the company from liability. We conclude that the evidence warranted the jury in finding appellant guilty of negligence in this respect, for it is evident that the guy ropes had not been sesurely fastened to objects in the ground, as the dictates of common prudence required, so as to hold the derricks in position; and appellant should not have allowed the derricks to be used over its tracks and men in that condition, without taking some care, at least, to discover and guard against...