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

• Decision Date: 10 May 1919
• Docket Number: (No. 433.)
• Citation: 212 S.W. 840
• Parties: HICKS v. GULF, C. & S. F. RY. CO. et al.
• Court: Texas Court of Appeals

212 S.W. 840

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

(No. 433.)

Court of Civil Appeals of Texas. Beaumont.

May 10, 1919.

Rehearing Denied June 4, 1919.

Appeal from District Court, Hardin County; J. Llewellyn, Judge.

Suit by C. R. Hicks against the Gulf, Colorado & Santa Fé Railway Company, in which the defendant made Kirby Lumber Company a party, and prayed judgment over against it for such amount as may be recovered by the plaintiff against the railway. From an adverse judgment, the plaintiff appeals. Affirmed.

Smith & Crawford and John Hancock, all of Beaumont, for appellant.

F. J. & C. T. Duff, of Beaumont, and Andrews, Streetman, Logue & Mobley, of Houston, for appellees.

WALKER, J.

This suit was filed in the district court of Hardin county, Tex., against appellee Gulf, Colorado & Santa Fé Railway Company, seeking recovery against it for damages received by appellant on November 28, 1915, while riding on a motorcar operated over the line of appellee by the Kirby Lumber Company. The Gulf, Colorado & Santa Fé Railway Company made the Kirby Lumber company a party to the suit, and prayed judgment over against it for such amount as might be recovered by appellant against the railway company.

The plaintiff sued only the Gulf, Colorado & Santa Fé Railway Company, and in his petition alleged, in substance, that he, as an employé of the Kirby Lumber Company, was riding on a certain motorcar then and there being operated by the Kirby Lumber Company over the tracks of the Gulf, Colorado & Santa Fé Railway Company under a certain written contract between said railway company and the Kirby Lumber Company. Said car was derailed through contact thereof with a cow on said track, and in said derailment plaintiff sustained certain personal injuries, which were the result of negligence upon the part of said railway company in failing to keep in repair its right of way fences, which it had permitted to become so out of repair as to permit live stock to come onto the railroad track; it being further alleged that the presence of the cow in question on the track was due to the alleged defective condition of the right of way fences, this being, as found by the court, the only ground of negligence alleged in plaintiff's petition.

The case was tried without a jury, and the trial court filed findings of fact and conclusions of law. No statement of facts is in the record.

For the purposes of this opinion, we give the following findings of fact by the court:

(a) That on the 28th day of November, 1915, the plaintiff, C. R. Hicks, was in the employ of the Kirby Lumber Company as a tie inspector helper, his duty being to mark railroad cross-ties.

(b) That on that date, and for a long time theretofore, the Kirby Lumber Company had a certain tie contract with the Atchison, Topeka & Santa Fé Railway Company, by and under which the said Kirby Lumber Company manufactured and sold and delivered to said Atchison, Topeka & Santa Fé Railway Company railroad cross-ties at prices in said contract specified.

(c) That on said date, and for some time theretofore, the said Kirby Lumber Company had a certain motorcar contract with the Gulf, Colorado & Santa Fé Railway Company, of which the said Hicks had no actual knowledge, which said contract is in words and figures, omitting formal portions, as follows, to wit:

"Whereas, the Kirby Lumber Company desires to operate upon the rails and track of the Gulf, Colorado & Santa Fé Railway Company motorcars; and

"Whereas, such use of the motorcars would be a great saving to said Kirby Lumber Company, and greatly expedite its employés in traveling from one of its lumber and tie camps to another, and said lumber company has applied to the said railway company for permission to so operate said motorcars upon the track of the railway company between Beaumont and Longview, between Gary and Grigsby, between Silsbee and Somerville, between Bragg and Saratoga, and between Kirbyville and Bonwier, and such use will be without cost or expense to the Kirby Lumber Company:

"Now, therefore, know all men by these presents:

"That the Kirby Lumber Company, in consideration of the above-recited facts, does hereby obligate itself to pay any or all damages to either persons or property that may be caused by the use of the aforesaid motorcars, or any of them, upon the track of said railway company; and the said Kirby Lumber Company does hereby waive any obligation or duty of said railway company, which might otherwise exist, to give notice to its employés operating said motorcars upon the track of said railway company of the approach of trains, cars, engines, or handcars, by bell, whistle, or otherwise; and said Kirby Lumber Company further agrees to adopt such means as will enable its employés, while operating said motorcars upon the track of the railway company, as aforesaid, to keep advised of the approach of trains, regular, extra, or special, cars, engines, handcars, or motorcars, and to avoid injury thereby.

"Said Kirby Lumber Company hereby takes notice and is advised that trains, cars, engines, or handcars, or motorcars, are liable to pass over the track of said railway company at any time.

"It is further agreed that the railway company may at any time revoke the above permission to operate said motorcars upon its track without previous notice.

"In testimony whereof witness our hands this 10th day of October, A. D. 1914."

(d) That on said date, to wit, November 28, 1915, the plaintiff, C. R. Hicks, in company with two other Kirby Lumber Company employés, was riding on one of the said Kirby Lumber Company motorcars over a portion of the tracks of the Gulf, Colorado & Santa Fé Railway Company described in said motorcar contract, the said Hicks and the other two employés of the Kirby Lumber Company referred to being at that time on their way from Silsbee, Tex., to Plantersville, Tex., at which last-named place there were certain railroad crossties to be inspected and marked; and while so riding on said motorcar over said tracks during the nighttime, said motorcar being at the time operated with due care, at a point near the station of Thorp, in Montgomery county, as said motorcar was turning a curve, it suddenly came in contact with a cow upon said track, as a result of which contact the plaintiff has been pecuniarily damaged, the extent of which damage I find it unnecessary to definitely determine in view of my conclusions of law upon the other facts found herein.

(e) That at or near the point where said motorcar came in contact with said cow the defendant, Gulf, Colorado & Santa Fé Railway Company, had permitted the fences inclosing its right of way to become out of repair to such an extent that stock were able to pass onto the right of way and track of said railway company, and said fences had been so out of repair for such length of time and under such circumstances that the defendant, Gulf, Colorado & Santa Fé Railway Company, ought reasonably to have known of that fact.

On these facts the court concluded as follows:

That the plaintiff, while riding upon the motorcar of the Kirby Lumber Company at the time and place and under the circumstances referred to, was a mere licensee upon the tracks of the Gulf, Colorado & Santa Fé Railway Company, and that said Gulf, Colorado & Santa Fé Railway Company did not owe to plaintiff, as such licensee, any duty to repair the fences inclosing its right of way, and that, owing no such duty to the plaintiff, its failure to repair such fences would not be negligence towards the plaintiff, and that, this being the sole ground of negligence alleged in the plaintiff's petition, the plaintiff is not entitled to any recovery against said Gulf, Colorado & Santa Fé Railway Company.

Appellant's first assignment of error is that the court erred in finding and concluding that appellant was a mere licensee upon the tracks of the appellee railway company.

As we have no statement of facts before us, in determining whether or not the court erred in concluding that the plaintiff was a mere licensee we are restricted to the court's findings, which, in so far as they relate to this assignment, are confined to the motorcar contract, by the terms of which permission was accorded to the Kirby Lumber Company to operate motorcars upon the railway company's track, and the other findings copied herein. Under these findings, the railway company was under no obligation of any character to permit the Kirby Lumber Company to operate a motorcar upon its tracks, there being nothing in the public charter of the railway company requiring it to give this permission to the Kirby Lumber Company.

In defining the relation between himself and the railway company, the appellant has cited us to Trinity & Sabine Railway Co. v. Lane, 79 Tex. 648, 15 S. W. 478. The Supreme Court states this rule as follows:

"The defendant company, by accepting its charter, assumed the obligation to keep the track in safe condition for the operation of trains over it, and to do this is a duty it owes to all persons who are permitted by it to travel upon or operate trains over it. The plaintiff being employed upon the train of another company, which was making trips over the defendant's road, as the evidence shows, was entitled to presume that this duty would be performed, and, having been injured by reason of the failure to perform it, he is entitled to recover of defendant damages for his injuries."

This rule, as thus stated by the Supreme Court, is undoubtedly the law of Texas; and if this motorcar contract brings this case within the rule announced in the Lane Case, then appellant was not a licensee on the track of the railroad company, and the railroad company would be liable to him on the facts as found by the trial court. Except where the contract was mutual or the track was being used by invitation, in all the cases called to our attention where the owning company has been held liable for injuries to the...