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

• Decision Date: 21 June 1905
• Citation: 89 S.W. 29
• Parties: GULF, C. & S. F. RY. CO. v. HAYS.<SMALL><SUP>*</SUP></SMALL>
• Court: Texas Court of Appeals

89 S.W. 29

GULF, C. & S. F. RY. CO. v. HAYS.^*

Court of Civil Appeals of Texas.

June 21, 1905.

COPYRIGHT MATERIAL OMITTED

Appeal from District Court, Cooke County; D. E. Barrett, Judge.

Action by D. B. Hays against the Gulf, Colorado & Santa Fé Railway Company. From a judgment for plaintiff, defendant appeals. Reversed.

Rehearing denied October 11, 1905.

J. W. Terry and A. H. Culwell, for appellant. Stuart & Bell, for appellee.

FLY, J.

This is a suit instituted by appellee for damages arising from personal injuries alleged to have occurred through the negligence of appellant in having in its employ an incompetent brakeman, who failed to flag the train that ran into the work train on which appellee was the engineer of a pile driver, which was attached to the work train, and in failing through its train dispatcher to notify the regular train of the presence of the work train on the track, on account of which negligence the regular train ran into the work train and injured appellee. Appellant answered by general demurrer and special exceptions and general denial, and specially answered that the accident occurred in the Indian Territory, where the employés connected with the work train were fellow servants of each other, and were fellow servants with the employés on the freight train that collided with the work train, and that if there was any negligence at the time of the accident it was that of a fellow servant of appellee. The cause was tried by jury and resulted in a verdict and judgment for appellee in the sum of $21,500.

Appellee was an engineer in charge of a stationary engine that was used on a flat car of appellant in connection with a pile driver, and on July 24, 1903, while the work train, of which the engine and pile driver were a part, was standing on appellant's main track between Ardmore and Marietta, Indian Territory, a regular freight train ran into the work train, and appellant was seriously and permanently injured. The work train was standing on a bridge across Hickory creek. The freight train that struck the work train was on its way north, and there was a sharp curve just south of the bridge which prevented the engineer on the freight train from seeing the work train until it was too late to prevent the collision. The conductor of the work train had sent a brakeman to flag the freight train, but he went to sleep and did not perform the duty. Under the laws of the Indian Territory, according to the evidence, appellee was a fellow servant with the brakeman who failed to perform his duty, as well as of the employés on the freight train. It is a well-established rule that employers are liable to their employés for injuries resulting from a failure to exercise reasonable care in selecting their co-employés, or for retaining such co-employés when their incompetency is known, or by the exercise of reasonable care might have been known. Railway v. Harrington, 62 Tex. 597. In this case the incompetency of the brakeman was shown, not only by certain acts of negligence, but by evidence of general reputation as to unfitness and incompetency. What has been said disposes of the first, second, and third assignments of error.

The fourth and fifth assignments present error in the action of the court in overruling the application for a continuance. The continuance was asked on account of the absence of W. N. Glasscock and A. L. Powers, the first residing at Galveston and the residence of the latter was unknown, although he had resided in Dallas and Port Arthur. Glasscock was an employé of appellant, and no effort was made to obtain his testimony, except that he had been "ordered" to be present, but had "declined to attend" because he wanted to get married. In the case of Powers, an agent of appellant had called at his Dallas residence, and then at his Port Arthur residence, but had not found him. It is apparent that no diligence had been used to obtain his testimony. The law prescribes the methods of obtaining the evidence of witnesses, and does not recognize the orders of litigants to their employés or visits to the houses of witnesses as diligence. It is not stated that due diligence was used to obtain the testimony of Glasscock. Before the court acted on the application for continuance, appellee agreed that the evidence of Powers set out in the application was true and could be read to the jury, and agreed that the evidence expected to be elicited from Glasscock could be read to the jury. The testimony of the witnesses related to the competency of the brakeman who failed to flag the train. The petition alleging the incompetency of the brakeman was filed on January 26, 1904, and the application for a continuance was made on May 4, 1904. The court did not err in overruling the application for continuance.

In this connection it may be said that the portion of the motion for new trial on the grounds that appellant was surprised at the evidence of Fred Meyers, a witness for appellee, to the effect that the reputation of the brakeman Harris was bad, and mentioning two persons that had talked with him about said reputation, cannot be sustained because appellant knew long before the trial that the question of the incompetency of the brakeman would be an important one in the case, and that his reputation would be inquired into. It could not have been surprised at the testimony of the witness, because it asked for a continuance to obtain testimony to meet the evidence as to the bad reputation of the brakeman. The affidavits of the witnesses attached to the motion for new trial merely show that the witnesses would contradict a witness for appellee, and new trials will not be granted, even in case of newly discovered evidence, to give the losing party an opportunity to attack a witness of the successful party.

The sixth assignment of error cannot be sustained. The court did not err in defining negligence as follows: "Negligence is the failure to exercise ordinary care. And ordinary care is that degree of care which an ordinary, prudent, and careful person would exercise under the same or similar circumstances." The definition is not as clear and explicit as it should have been; but, if appellant wanted it more so, it should have asked for a clearer instruction. Railway v. Curlin, 13 Tex. Civ. App. 505, 36 S. W. 1003; Railway v. Brown (Tex. Civ. App.) 69 S. W. 1010; Railway v. Serafina (Tex. Civ. App.) 45 S. W. 614; McDonald v. Railway, 86 Tex. 1, 22 S. W. 939, 40 Am. St. Rep. 843.

There is no merit in the seventh assignment of error, which complains of that part of the charge that submits the question of the incompetency of the brakeman to the jury. There was evidence raising that issue, and it was properly submitted. The theory advanced by appellant, that the charge was incorrect because it submitted the question of the incompetency of Harris as a brakeman, when he was not engaged in braking, but in flagging, at the time of the accident, cannot be sustained. Flagging trains was one of the duties that devolved upon the brakeman, just as it might be a part of his duty to adjust switches, and his incompetency, not as to the particular branch of the duties he was engaged in at the time that he went to sleep and failed to flag the train, but his fitness for the varied duties of his employment as a brakeman, was the issue for the jury.

It was in proof that appellant had a rule requiring the dispatcher to notify the employés on a belated regular train of the presence of a work train standing on the main line, and that evidence raised an issue which the court properly submitted to the jury. The failure of the dispatcher to perform that duty may have concurred with the negligence of the brakeman in producing the disaster. Gonzales v. City of Galveston, 84 Tex. 3, 19 S. W. 284, 31 Am. St. Rep. 17; Shippers' Compress Co. v. Davidson (Tex. Civ. App.) 80 S. W. 1032. There is no support for the contention that the charge of the court authorized the jury to make a rule for appellant that did not exist. The rule or custom was proved, and all the court authorized the jury to do was, if the rule existed, to find whether or not it had been regarded. The court did not attempt to make a rule for appellant as to the way in which it should conduct its business, but simply allowed the jury, if they found it had been a rule, to hold it responsible for damages arising from a failure to enforce it. From the very fact that appellant made such a rule, it was inferable that, under certain circumstances, flagging was not deemed all that was required for the safety of employés, and the court did not err in submitting to the jury the question as to whether flagging alone was a reasonably safe and sufficient way in which to prevent a moving train from running into one standing on the track. The fact that appellant had promulgated a rule did not give it such character for being safe and sufficient that it could not be questioned or inquired into. If it had been error to submit the question as to whether the rule as to flagging was a reasonably safe one, appellant could not complain because it requested a charge involving inquiry into whether the rule was reasonably safe.

The theory advanced by appellant that, if the injury resulted from the negligence of the brakeman, no question of his competency could arise is untenable. We do not think that theory can be sustained, for there is high authority for the proposition that a delinquency may be of such a flagrant and outrageous character as to warrant the conclusion that only an incompetent servant would have committed it. Labatt, Mast. & Serv. § 189. As said by the author: "The questions whether a negligent act was merely a temporary lapse by a capable servant, or indicated an essential unfitness, are entirely distinct, and it seems impossible, from a purely logical standpoint, to maintain that such evidence, so far as it bears upon the latter question, should be rejected simply...