Houston & Great N. R.R. Co. v. Meador

• Decision Date: 01 January 1878
• Parties: THE HOUSTON AND GREAT NORTHERN RAILROAD CO. v. R. G. MEADOR, ADM'R.
• Court: Texas Supreme Court

50 Tex. 77

THE HOUSTON AND GREAT NORTHERN RAILROAD CO.

v.R. G. MEADOR, ADM'R.

Supreme Court of Texas.

1878.

APPEAL from Smith. Tried below before the Hon. M. H. Bonner.

The facts are stated in the opinion.

Jones & Henry, for appellant.--We proceed to the discussion of the legal question, whether Sheppard & Henry, the contractors, and their servants, were the servants of defendant, and the defendant therefore liable to plaintiff for the injuries to plaintiff's intestate's crops of grain, occasioned by the negligence of Sheppard & Henry and their servants while constructing the road through plaintiff's intestate's premises?

Do the facts show that Sheppard & Henry were contractors, employed by defendant to construct its road through plaintiff's intestate's premises, and did they have an independent control of the work while they were so constructing it? If so, then they were not the servants of defendant, and defendant is not liable for the acts of negligence committed by them and their servants while they were constructing defendant's road through plaintiff's intestate's premises.

In reference to the liability of railroad companies for the omissions of contractors and their agents, it is said, in 1 Redfield on the Law of Railways, sec. 129, p. 503: “The general doctrine seems now firmly established, that the company is not liable for the acts of the contractor's servant, where the contractor has an independent control, although subordinate, in some sense, to the general design of the work. The distinction, although but imperfectly defined for a long time, has finally assumed definite form, that one is liable for the act of his servant, but not for that of a contractor or of the servant of a contractor.” In note 1 to the above authority a number of cases are referred to by the author in support of the law as laid down by him.

In Pierce on American Railroad Law, p. 235, in speaking of the responsibility of railroad companies for the torts of contractors and their servants, the law is thus stated: “The company is, in general, responsible for the torts of only such persons as sustain towards it the relation of agents or servants. It is important to ascertain what circumstances create this relation, so as to determine its liability. The relation of principal and agent, of master and servant, does not subsist when the employé exercises an independent employment and is not under the immediate direction of the employer.”

In Shearman & Redfield on Negligence, sec. 79, it is said: “It appearing, from the definition which we have given of a contractor, that he is not the agent or servant of his employer in relation to anything but the specific results which he undertakes to produce, it follows that his employer is not responsible to third persons for his negligence or for the negligence of his servants, agents, or sub-contractors in the execution of the work.” (See also sec. 81.)

We think the law on this subject, announced in the text-books to which reference has been made, is fully sustained by the current of judicial decisions on the subject. (Steele v. Southwestern Railroad Co., 16 C. B., 550; Hilliard v. Richardson, 3 Gray, 349, 352;Young v. New York Central Railway, 30 Barb., 229;Kelly v. New York, 11 N. Y., 432;Cincinnati v. Stone, 5 Ohio St., 38;Barry v. City of St. Louis, 17 Mo., 121; Railroad Co. v. Hanning, 15 Wall., 649; Eaton v. European and Northern Railway Co., 8 Am. Law. Rep., 430; Houston and Great Northern Railway Co. v. Van Bayless, decided by Texas Court of Appeals in 1876.)

That there are some cases that seem to be in conflict with the law as laid down in the cases to which we have referred, we admit; but we doubt if any cases can be found that conflict with the authorities, where the injuries charged are the results of mere acts of omission or negligence in the performance of a work already commenced, and not of a trespass in going on the premises in the first instance.

In the case before the court, according to the testimony, the injury to plaintiff's intestate's crops of small grain was caused by the contractors and their servants in letting down the fences near the road they were constructing and neglecting to put them up, and in not keeping the gates opening into the close, that had been erected by plaintiff's intestate himself for the purpose of keeping stock out of his close while the road was being constructed through it, closed, when passing out of and into the close.

If these were such acts as the contractors and their servants were authorized to do--we mean the acts of negligence mentioned--by the charter of defendant, then defendant would be liable for them, though Sheppard & Henry acted under a contract with it and had an independent control of the road they were constructing; but otherwise, if the acts of negligence were violative of defendant's charter. (Pierce on Am. R. R. Law, p. 241.)

It cannot be pretended that the acts of negligence by which plaintiff's intestate's property was damaged are authorized by defendant's charter. We take it, then, that the facts in this case show that it is within the general rule, in regard to the liability of railroad companies for the acts of omission or negligence of their contractors and their servants, laid down in the text-books to which we have referred, and not an exception to it. We submit, that we have shown that the fourth special charge asked for by defendant is in harmony with this general rule, and that it was warranted by the facts of the case. Therefore we maintain that the court erred in refusing it. * * *

Reaves & Dodd, for appellees, cited Redfield on Railways, pp. 255, 257; Paschal's Dig., arts. 4922, 4925; Const. of 1869, art. 1, sec. 14; B. B. B. & C. R. R. Co. v. Ferris, 26 Tex., 601; Shear. & Red. on Neg., sec. 84; City of Buffalo v. Holloway, 7 N. Y., 493;Storrs v. Utica, 17 N. Y., 104; Vermont Central R. R. Co. v. Baxter, 22 N. H., 372.

GOULD, ASSOCIATE JUSTICE.

This suit was instituted on behalf of the estate of Thomas Meador, deceased, to recover damages of the Houston and Great Northern Railroad Company for an alleged trespass in entering upon the premises of the intestate and constructing their road through his inclosed farm, tearing down the fence, and failing and refusing to build suitable stock-gaps, by reason whereof it was charged that stock entered the field and damaged the growing crop of small grain.

The defendant's special answer was, that the road was constructed not by its servants or agents, but by contractors employed under a written contract, who had exclusive control of the road and everything used in its construction, claiming that the alleged damages, if any, were occasioned by the negligence of said contractors and their servants, or by other persons than defendant or its servants.

The construction of the road through the land of Thomas Meador was commenced, as was shown on the trial, in September or October, 1873, and was completed by the contractors in April following, when it was turned over to the railroad company. Sheppard & Henry contracted with defendant to build the road according to specifications. “They were to furnish, and did furnish, the labor, materials, and implements necessary to do the work, including everything, except engines, cars, engineers, and firemen, having exclusive control during construction, subject only to the general supervision of the work by the chief engineer of defendant and his assistant.” There was evidence that Thomas Meador, who was then living, “refused to give the right of way through his farm, and stated to the agent of the company that the company could go ahead with their road through his farm, but it would have to pay him damages for it.” The road passed through one hundred and fifty acres, inclosed by a fence, seventy or eighty acres of which were sowed in wheat and other small grain. There was evidence that the fence, where the road enters and leaves the field, was torn down for twenty or thirty yards, put up again, and afterwards torn down again and again put up; that no cattle-guards were constructed until April, 1874, about the time the road was finished; that Thomas Meador, for the protection of his grain crops, erected, about Christmas, a gate where the road enters his farm and one where it passes out of it; that stock got into the farm, while the road was being constructed, at the places where the fence was torn down, and damaged the growing crop, there being evidence as to the amount of damage. It appeared that after the road was completed, and after Thomas Meador's death, his heirs and distributees instituted proceedings under the statute, and recovered and received damages for the right of way. There was evidence on the part of defendant tending to establish that there was no negligence, as to the fences, &c., on the part of the contractors, and that the damage, if any, was the result of the acts and trespasses of other persons.

The charge of the court allowed the plaintiff to recover only for damages occasioned by the trespass of stock which entered the farm “by reason of failure of defendant to have proper cattle-guards or stops” placed where the road entered and left the farm. In one part of the charge the court tells the jury that the general rule is, that where a railroad is constructed by a contractor who has independent control of his own employés, though the general design and result of the work are subject to the supervision of the agent of the company, then, for any damage occasioned by the negligence or misconduct of such contractor or his employés, the railroad company is not liable. But the charge immediately proceeds: “If, however, the testimony in this case should show either that the defendants, their servants or employés,...