Hall v. Galveston, H. & S.A.R. Co.

• Decision Date: 25 May 1889
• Citation: 39 F. 18
• Parties: HALL v. GALVESTON, H. & S.A. Ry. Co. et al.
• Court: U.S. District Court — Western District of Texas

39 F. 18

HALL v. GALVESTON, H. & S.A. Ry. Co. et al.

United States Circuit Court, W.D. Texas, San Antonio Division.

May 25, 1889

McLeary & King and H. H. Boone, for plaintiff.

Columbus Upson, for defendants.

MAXEY J., (charging jury.)

The plaintiff, Lemuel H. Hall, as the surviving father of Lemuel R. Hall, deceased, brings this suit against the Galveston Harrisburg & San Antonio Railway Company and the Southern Pacific Company, to recover damages resulting from the death of his son, Lemuel R., growing out of injuries received by the son at Hondo river bridge while in the service of defendants as a brakeman. The cause of the disaster, as claimed by the plaintiff, and the death of his son, will be stated to you partially in the language of the petition, as follows: 'That the proximate cause of the said injury done to the said Lemuel R. Hall, resulting in his death, was the defective and unsafe condition of the said defendant's railroad bridge across the Hondo river, and the track laid thereon; that the said bridge was at the time of the said disaster so broken and damaged as to be wholly unfit for trains to pass over, and incapable of bearing the weight of an ordinary engine and train of cars. ' The petition of plaintiff further alleges that the son of plaintiff was ignorant of the unsafe condition of the bridge and believed it to be perfectly safe, and sufficient to support the weight of the train on which he was riding 'and although the defendants well knew that said bridge was unsafe and insufficient to support the weight of locomotives and trains crossing the same, yet they wholly failed and neglected to repair the said bridge and track thereupon, and to put the same in good and safe condition for the use of their employes, and even wholly failed and neglected to warn the said Lemuel R. Hall and their other employes of the unsound, unsafe, and dangerous condition of the said bridge, but suffered them unawares, in the discharge of their duty to the defendants, to rush headlong upon certain death.' The defendants, in their answer, deny plaintiff's right to recover on the following grounds: (1) That the bridge was a good and substantial structure, and in a good state of preservation and repair, and hence that the injuries resulting to the deceased, Hall, from its giving away, were included in the risks assumed by him upon entering the service of defendants; (2) that Hall, the deceased, was guilty of negligence which contributed directly to his injuries; and (3) that, if there was any negligence at all on the part of defendants in connection with the accident which befell plaintiff's son, it was the negligence of a fellow-servant, for which the defendants are not liable.

In order to relieve this case of the irrelevant matter which has crept into it, I propose to direct your attention to what I regard as the real issues in the controversy, and, with that view, you are instructed that the following facts are indisputably shown by the testimony: (1) On the 1st day of March, 1888, two trains of cars of the defendants-- one going east and the other west-- met at Hondo City, a station on the line of the road, from three to five miles west of Hondo river. (2) The west-bound train was a regular freight train, and the east-bound train was what the witnesses term an 'extra.' (3) Thayer was the conductor, Crowley and engineer, and Erkel was one of the brakemen, on the west-bound train. On the east-bound train Davidson was the conductor, Hilliard the engineer, and Hall (the plaintiff's son) and Hardesty were the brakemen. (4) Prior to reaching Hondo City, at the date mentioned, the west-bound train, partially laden with lumber, passed over the Hondo river bridge, which was, before the crossing of that train, in a good and safe condition. While this train was passing over the bridge, a heavy piece of bridge timber fell from one of the cars on the bridge; and it is not denied by either side that this piece of timber, in falling, injured the bridge; but the train then on the bridge passed over safely. (5) The east-bound train left Hondo City between 10 and 30 minutes after the arrival there of the train going west. This train (the east-bound train) continued east at a rapid rate of speed, and in passing over the Hondo river bridge the structure gave away, and in the disaster plaintiff's son was so severely injured that he died within a few days thereafter.

The facts of this case develop nothing, prior to the crossing of the bridge by the west-bound train, which would render the defendants liable in this suit, and you are so instructed. And the mere fact, gentlemen, disconnected from other facts that a good, substantial railway bridge, in a state of safe preservation and in good repair, suddenly gives away under the weight and force of a moving train, would not render the company liable in a suit brought by an employe for injuries resulting therefrom; for in that case the injury would be included in the risks assumed by him in entering the service of the company for which no liability would attach to the latter. But the petition of the plaintiff alleges that the defendants failed and neglected to warn the deceased of the unsafe condition of the bridge, but suffered him and his co-employes to rush headlong upon sudden death. In support of this allegation it is insisted by the plaintiff that the engineer, Crowley, and the telegraph...