Hamilton v. St. Louis, S. F. & T. Ry. Co.

• Decision Date: 05 May 1926
• Docket Number: (No. 4029.)
• Citation: 283 S.W. 475
• Parties: HAMILTON v. ST. LOUIS, S. F. & T. RY. CO. MAGNOLIA PETROLEUM CO. v. HAMILTON.<SMALL><SUP>*</SUP></SMALL>
• Court: Texas Supreme Court

283 S.W. 475

HAMILTON v. ST. LOUIS, S. F. & T. RY. CO.

MAGNOLIA PETROLEUM CO. v. HAMILTON.^*

(No. 4029.)

Supreme Court of Texas.

May 5, 1926.

Error to Court of Civil Appeals of Sixth Supreme Judicial District.

Action by Mrs. C. E. Hamilton, administratrix, against the St. Louis, San Francisco & Texas Railway Company and another. Judgment for plaintiff was reversed and rendered as to the named defendant, and affirmed for plaintiff as to the other defendant (251 S. W. 597), and plaintiff and defendant Magnolia Petroleum Company bring error. Affirmed.

W. H. Francis, and A. S. Hardwicke, both of Dallas, and Head, Dillard, Smith, Maxey & Head, of Sherman, for Magnolia Petroleum Co.

Chas. Batsell and Wood & Wood, all of Sherman, for administratrix. W. F. Evans, of St. Louis, Mo., Goree, Odell & Allen, of Fort Worth, and Freeman, McReynolds, Hay & Wolfe, of Sherman, for Railway Co.

GREENWOOD, J.

Mrs. C. E. Hamilton, as administratrix of the estate of her deceased husband, sued the St. Louis, San Francisco & Texas Railway Company and the Magnolia Petroleum Company to recover damages for her husband's death, which was alleged to have been caused by the negligence of the agents and servants of said companies. The deceased was an engineer in the employment of the railway company. He was operating one of the railway company's motor trains transporting passengers in interstate commerce when he met his death in a collision of his train at a public road crossing with an automobile truck belonging to the petroleum company.

The deceased had served the railway company as an engineer for 21 years, and had been running over the crossing for 7 years. He had traversed the crossing twice a day for some 20 days immediately preceding the collision while under duty to keep a lookout for persons or vehicles at the crossing.

The jury found that the railway company was guilty of negligence in permitting grass and weeds to grow and remain on its right of way, which prevented the deceased from seeing the truck until after it was on the right of way and was about to cross the track. The jury further found that the deceased did not fail to keep such a lookout for persons at and near the crossing as an ordinarily prudent person would have kept, and that the deceased did not assume the risk incident to grass and weeds growing and remaining on the right of way.

The Court of Civil Appeals reversed the judgment of the district court in so far as it awarded the administratrix a recovery against the railway company, and rendered judgment for the railway company. On writ of error granted the administratrix, she seeks to reverse the judgment of the Court of Civil Appeals in favor of the railway company.

After pointing out that the deceased was bound to know of the presence of the grass and weeds, under the undisputed facts and the jury's findings, the Court of Civil Appeals concluded:

"If he knew that, it cannot be doubted, when his age and experience are kept in mind, that he appreciated the additional risk he incurred in operating the car over the crossing because of the existence of the weeds and grass on the right of way. Railway Co. v. Hynson, 101 Tex. 543, 109 S. W. 929. Knowing of the railway company's conduct in the respect stated, and appreciating the risk arising therefrom, he was within the applicable rule, and we see no escape from the conclusion that the railway company was not liable to appellee for the consequences of the collision." 251 S. W. 600.

The Commission of Appeals, from whom this case has been withdrawn, were of the opinion that reasonable minds might differ as to whether the deceased realized the danger created by the weeds and grass. We think the decision of the Court of Civil Appeals on this question was correct. As the deceased was engaged in interstate commerce the question is one of federal law. The rule in the Supreme Court of the United States was stated in an opinion by Justice Moody to be:

"Where the conditions are constant and of long standing, and the danger is one that is suggested by the common knowledge which all possess, and both the conditions and the dangers are obvious to the common understanding, and the employee is of full age, intelligence and adequate experience, and all these elements of the problem appear without contradiction from the plaintiff's own evidence, the question becomes one of law for the decision of the court. Upon such a state of the evidence a verdict for the plaintiff cannot be sustained, and it is the duty of the judge presiding at the trial to instruct the jury accordingly." Butler v. Frazee, 211 U. S. 467, 29 S. Ct. 138, 53 L. Ed. 281.

See, also, Gila Valley Ry. Co. v. Hall, 232 U. S. 102, 34 S. Ct. 229, 58 L. Ed. 521, and Southern Pacific Co. v. Berkshire, 254 U. S. 417, 41 S. Ct. 162, 65 L. Ed. 337.

The rule applied by the Supreme Court of the United States follows the common-law principle disclosed in Patton v. Dallas Gas Co., 108 Tex. 326, 192 S. W. 1060, where this court said:

"He [the servant] cannot close his eyes and refuse to see a danger which is open and obvious to him, and which he would necessarily see, without attempting to make an inspectior. He cannot refuse to look and to see the danger which is obvious and in such plain view as that he would be compelled to see it if he exercised his sense of sight, and be acquitted of the assumption of the risk upon the ground that he did not know of the danger. In such a case he must be held to have known that which he must necessarily have known, had he looked."

The petroleum company was an unincorporated joint-stock association organized for the purpose, among others, of carrying on the business of manufacturing and selling petroleum products. It distributed and sold such products throughout the state, having offices and storage tanks at Sherman in Grayson county. A part of its regular business was the transportation and delivery of its products, such as gasoline and kerosene, throughout Grayson county by means of automobile trucks. These trucks carried no goods other than those belonging to the petroleum company. The truck which collided with the train operated by Hamilton and thus caused his death was regularly used over the public roads in distributing the company's products in and around Sherman. At the time of the collision, which was occasioned, according to the jury's findings, by the negligence of the petroleum company's servant in operating the truck, it was being driven from Sherman to a smaller town in Grayson county, and was loaded with 200 gallons of gasoline in cans and 120 gallons of kerosene in cans.

The Court of Civil Appeals affirmed a judgment of the district court awarding the administratrix damages against the petroleum company. A writ of error was then sued out by the petroleum company to reverse the judgments of the district court and of the Court of Civil Appeals.

The collision occurred while the act relating to injuries resulting in death, approved April 7, 1913 (Acts 33d Leg. c. 143 [Vernon's Sayles' Ann. Civ. St. 1914, art. 4694]), was in force. The single ground urged in this court by the petroleum company for the reversal of the judgments against it is that the 1913 act did not fix liability upon the petroleum company for a death caused by the negligence of one of its servants while operating a truck conveying its manufactured products.

The Court of Civil Appeals and the Commission of Appeals concur in the opinion: First, that the second section of the act in so far as it attempted to fix liability for the death of a person when caused by the negligence of the agents or servants of another person was void, because no such purpose was declared in the caption of the act; and, second, that the first section of the act fixed liability on the petroleum company for a death caused by the negligence of a servant operating one of its delivery trucks, because it was the owner of a vehicle for the conveyance of goods other than the vehicles specifically enumerated.

We have no difficulty in agreeing with the first of these conclusions. The administratrix argues that the caption should be construed as if it read: "An act to amend article 4694 of the Revised Civil Statutes of 1911." The insuperable obstacle to the soundness of this argument is that the subsequent words of the caption, to wit, "giving cause of action where injuries resulting in death is caused by the negligence of a corporation, its agents or servants," were manifestly intended to have some effect. If they could be given the effect of merely an imperfect or inaccurate description of the article sought to be amended, then we might uphold the attacked portion of section 2 as germane to the subject dealt with by the original article and therefore valid, as was held in Mortgage Co. v. Hardy, Secretary, 93 Tex. 298, 55 S. W. 169. What prevents us from treating these words as defining the law to be amended is the express declaration of the emergency clause that such law as construed by the Supreme Court did "not allow recovery for injuries resulting in death caused by the wrongful act, neglect, unskillfulness or default of a corporation, its agents or servants."

With the very language of the act precluding the words being interpreted as stating the law to be amended, the words can have no other intent then to declare the purpose of the amendment. A caption which declares a purpose to amend a statute by adding thereto a clause creating liability for injuries resulting in death when caused by the negligence of corporations, their agents, or servants cannot be regarded otherwise than as deceptive in so far as the amendment may seek to declare liability for deaths occasioned, not by the negligence of corporations, their agents or servants, but for deaths occasioned by the negligence of persons, their agents or servants. Arnold v. Leonard, 114 Tex. 543, 544, 273 S. W. 799.

The court declared through Judge Wheeler in Tadlock v....