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

• Decision Date: 05 February 1902
• Citation: 66 S.W. 804
• Parties: GULF, C. & S. F. RY. CO. v. BRYANT et al.
• Court: Texas Court of Appeals

66 S.W. 804

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

Court of Civil Appeals of Texas.

February 5, 1902.

Appeal from district court, McLennan county; Marshall Surratt, Judge.

Action by Nettie Bryant and another against the Gulf, Colorado & Santa Fé Railway Company. Judgment for plaintiffs, and defendant appeals. Reversed.

The statement of the nature and result of the suit is correctly given in appellant's brief as follows:

This suit was instituted by John Bryant against the appellant and the McGregor Cotton Oil Company for personal injuries. Bryant died, and Nettie Bryant, his widow, and Clyde Bryant, his daughter, were substituted as parties plaintiff, and alleged that the injuries received resulted in the death of John Bryant. Appellees admitted that the general demurrer of the cotton oil company was good, and on such admission the court sustained such general demurrer and dismissed the case against that company. The trial resulted in a verdict and judgment in favor of the appellees for $5,000. Appellant moved for a new trial on substantially the same grounds as are assigned as error, which motion was overruled, and this appeal has been properly prosecuted.

Plaintiffs' petition substantially alleged. "That on September 25, 1899, John Bryant was in the employ of the McGregor Roller Mills, and that, as part of his duty, he was required to load and unload flour and other products from the wagon of said roller mills into cars on the track of appellant, and in the discharge of his duties, on the abovenamed date, he, with a load of bran on his wagon, went to the defendant railway company's track, at the usual place where he had been accustomed to loading bran, where he found an empty car on the track, and started to load the bran from his wagon into the car for the purpose of shipment, at which time an agent of appellant stopped him and said he was loading the bran in the wrong car, and directed him to load the bran into a box car standing on what is designated and known as the `McGregor Cotton Oil Mill Track,' owned and controlled by appellant and, following the instructions of said agent of appellant, he commenced loading the bran into the car; and, while so engaged, C. H. Murphy and T. K. L. Murphy, who were employés working for the McGregor Cotton Oil Mill, and who were in charge of, controlling, managing, and operating, as agents of the appellant, the cars on said track at the time, and they knowing (or could have known by the exercise of ordinary care) that Bryant was at work on another car standing on the same track with the one he was loading, and above the one on which he was loading (the track being on an inclined plane, and the said other car being higher than the one he was loading), the said employés and agents of the said defendant knew that a car started from said inclined plane toward the one where said John Bryant was would go at a very rapid rate of speed, and would strike the cars between it and the one said John Bryant was working in, and cause said other cars to strike the car said John Bryant was in; this said car being attached to the said other cars; and the striking of said cars by the one started by defendant's agents and employés would endanger the life of the said John Bryant. That the striking of the said car by one moving at such a rate of speed as the one started would do was calculated to cause great and serious injury to any one situated as said John Bryant was, and as said employés and agents of the defendant knew of at that time; but said agents and employés of defendant, disregarding all consideration for the safety and rights of the said John Bryant, and in a reckless, negligent, and careless manner and without giving any signals or notice of movement of said cars, went to said car standing above these others, and started it down said grade, and giving it such momentum that it struck the cars standing above, and attached to the one John Bryant was working in, and the striking together of said cars caused such a loud and terrific noise, and there being no one on said moving car to control it or manage or check its speed, it hit the other car with terrible and violent force, and created such a noise, caused by the bumping of the cars together, and the rapidity at which it was moving caused the said John Bryant to be greatly frightened, and caused him to fear that the said car which he was in would be thrown off the tracks, and thereby cause him great injury, and probably destroy his life. This condition caused the said John Bryant to attempt to alight from said car onto the wagon, and he did leave said car; but just as he landed on said wagon from said car the said team hitched to his wagon became frightened and put the wagon in motion, which, together with the movement of the car caused by the striking of it with the other cars that were in motion, caused him to lose his balance, and he was propelled to the ground and on the rocks with great force and violence, thereby greatly injuring said John Bryant, from the effects of which his death afterwards resulted. The plaintiffs allege and charge that the roadbed and track of the defendant the Gulf, Colorado & Santa Fé Railway Company, at the point where the said John Bryant was injured as alleged, and all along said spur track, had been negligently constructed in such manner as to constantly imperil the lives of the public, and especially said John Bryant, and others situated as he was at that time, in this: That it was constructed so that there was a steep up grade and inclined plane in the direction from where said John Bryant was injured to the point where the said cars were turned loose, and the negligence of the said defendant in so constructing its said track and roadbed caused the injuries and death of said John Bryant. These plaintiffs further allege and charge that the said defendant railway company was negligent in this: That it knowingly allowed and permitted and authorized the servants and employés of the defendant the McGregor Cotton Oil Mill to use, run, and operate its cars on said track, when it was known to said railway company that they were not experienced men in the operation of trains, and were incompetent to use and operate said cars with safety to the public, and especially the said John Bryant, and others engaged in the business which he was then employed at; and the said defendant railway company is liable for the acts of the said servant of the said McGregor Cotton Oil Mill, for the reason that they were permitted and authorized by the said railway company to at any and all times, whenever requested by said McGregor Cotton Oil Mill, to use and operate said cars on said track for the benefit of both of said defendants herein. And the said defendant railway company, by acquiescence, had for many years prior to said injuries to said John Bryant ratified and confirmed their right to so use and operate such cars on said track, and had in all things adopted their employment in this way as the employment and acts of their own servants."

The facts show that the deceased was hauling bran for the McGregor Roller Mills, and he was directed by the mill bookkeeper to load a car with bran on defendant's road. He got a wagon load of bran and conveyed it to defendant's road, and was directed by one Dibble, an employé of defendant, on what track he would find a car to load the bran in, which was a switch of defendant's road for use of the McGregor Cotton Oil Company. He selected a car on the switch, and, while unloading his first load, Russell, superintendent of the oil mill, came out where deceased was at work unloading the bran, and spoke to him. Settler, an employé of the road, seemed to be taking the number of the cars, and he also came near where deceased was at work. Deceased was engaged in unloading his second load when the accident occurred. He was using trucks, rolling the sacks of bran back to the end of the car; his wagon standing by the car door, with the horses (two) hitched to the wagon, not tied. He knew it was about time for the local freight train to come in, and looked for it every time he went to the door. He was back in the car when the oil company's employés turned a car loose, and he (his testimony having been taken after suit, but before his death) testified that they (meaning cars) "bumped against my car." He continued: "I thought the local freight had run in without my knowledge, so I jumped out of the car onto my wagon, and fell off the wagon, and broke my left arm near the hand, and mashed my hip very badly. * * * I think one of the oil mill hands started the cars down the track that bumped my car and scared me. When the bumping of the cars frightened me, I ran to the door of the car and jumped onto my wagon. The side track where the car was standing was lower at the west end, and the cars started by the employés of the oil mill was higher up the track than where I was. There were several cars on the side track, and I think the car I was on was near the center of the string of cars." He says on cross: "The car that came down the track did not touch the car I was...