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

• Decision Date: 25 March 1903
• Citation: 75 S.W. 803
• Parties: GULF, C. & S. F. RY. CO. v. HOWARD et al.
• Court: Texas Court of Appeals

75 S.W. 803

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

Court of Civil Appeals of Texas.

March 25, 1903.

Appeal from District Court, Bell County; John M. Furman, Judge.

Action by Lizzie Howard and others against the Gulf, Colorado & Santa Fé Railway Company. From a judgment for plaintiffs, defendant appeals. Affirmed.

J. W. Terry and A. H. Culwell, for appellant. John W. Parker and W. C. Halbert, for appellees.

KEY, J.

This is a statutory action to recover damages resulting from the death of J. D. Howard, the plaintiffs alleging that his death was caused by the negligence of the defendant. The defendant answered by general demurrer, special exception, general denial, and pleaded, specially, contributory negligence on the part of Howard, and that the defendant's servants who were charged by the plaintiffs as committing the negligent acts were fellow servants of Howard. A verdict and judgment were rendered for the plaintiffs, and the defendant has appealed.

The testimony shows the following facts: J. D. Howard was in the employ of the defendant as a hostler at Temple, Tex. His duties were to take charge of, operate, and handle all engines in and about the roundhouse, coal chute, and cinder pit. He had two assistants, one named Howard and the other Langford, but, in the absence of specific authority, neither of them were authorized to take charge of and move engines. Their duties were to assist in coaling, removing cinders, switching, etc. On the occasion in question, about 3 o'clock a. m. during a dark night, two engines coupled together, called a "double header," were left in the yard at Temple. These engines were taken charge of by Hoherd and Langford, and placed at the coal chute, where one was coaled. They were then started back to the roundhouse, both engines, while going to the roundhouse, moving backward. A few minutes before the engines left the coal chute, Howard left the roundhouse, 200 or 300 yards away, going in the direction of the two engines, for the purpose, presumably, of taking charge of them and running them to the roundhouse. In a very few minutes after the two engines started from the coal chute, Howard was found lying by the side of the track over which the engines had just passed, one of his legs being across one of the rails and cut almost in two. There were also other severe and fatal wounds upon his body, and he died in about 30 minutes after he was found, without giving any explanation as to how the accident occurred.

We rule against the appellant on the contention that Hoherd and Langford were Howard's fellow servants, and for that reason the defendant is not liable. According to the rule of the common law, the employés referred to would be fellow servants; but on that subject the common law has been modified in this state by statute, one article of which reads as follows: "Every person, receiver or corporation operating a railroad or street railway the line of which shall be situated in whole or in part in this state, shall be liable for all damages sustained by any servant or employé thereof while engaged in the work of operating the cars, locomotives or trains of such person, receiver or corporation, by reason of the negligence of any other servant or employé of such person, receiver or corporation, and the fact that such servants or employés were fellow-servants with each other shall not impair or destroy such liability." Batts' Ann. Civ. St. art. 4560ea. Counsel for appellant contend that employés operating locomotives in yards at stations, or in and about roundhouses, coal chutes, etc., are not within the purview of the statute quoted. The argument is that such service is merely preparatory to operation, and does not constitute "operating" such locomotives. While there may be some apparent plausibility in such argument, still it is not believed to be sound. It may be true that such service in reference to a locomotive is incidental and preparatory to the operation of railway trains, and, if the statute had omitted the word "locomotives," the construction urged might be sound. But the Legislature saw proper to insert the word "locomotives," and to use the disjunctive conjunction "or," thereby making the statute apply to employés who might operate locomotives without cars, and under such circumstances as not to constitute trains. It is often the fact that railroad yards cover a considerable area, and in this case some of the witnesses state that it was about 900 feet from the roundhouse to the coal chute. To move locomotives in and about such yards involves the same character of service and risk that it does to move them upon the main line in hauling freight and passenger trains, and, in our opinion, the one constitutes operating as much as the other. Hence we hold that the statute quoted applies to this case, and that the defense of fellow servant is not available.

All of the objections urged against the charge of the court are overruled, except that presented by the eighth assignment, which complains of the charge given on the burden of proof. The paragraph of the charge referred to instructed the jury that the burden was on the plaintiffs to prove the material allegations of their petition, "and on the defendant to prove the material allegations of its defense of alleged contributory negligence on the part of the deceased." The instruction quoted is objected to on the ground that it was calculated to cause the jury to believe that, in considering the question of contributory negligence, they were not to consider evidence submitted by the plaintiffs. It seems now to be the established rule that if evidence coming from the plaintiff's side raises the issue of contributory negligence, and that issue is presented by the defendant's answer, such a charge on the burden of proof as was given in this case will constitute reversible error, unless the jury are further instructed that, in determining the question of contributory negligence, they may consider all the evidence bearing on that issue, whether offered by the plaintiff or the defendant. Ry. Co. v. Shelton, 72 S. W. 165, 6 Tex. Ct. Rep. 734; Ry. Co. v. Reed, 88 Tex. 439, 31 S. W. 1058; Ry. Co. v. Hill (Tex. Sup.) 69 S. W. 136; Id., 70 S. W. 103, 4 Tex. Ct. Rep. 799; Ry. Co. v. Martin (Tex. Civ. App.) 63 S. W. 1089; Ry. Co. v. Lewis (Tex. Civ. App.) 63 S. W. 1092.

In Railway Co. v. Shieder, 88 Tex. 152, 30 S. W. 902, 28 L. R. A. 538, while the plaintiff's evidence perhaps raised the question of contributory negligence, a charge similar to the one under consideration was approved; but it does not appear that that charge was objected to as misleading. In that case the contention on behalf of the defendant was that the...