Houston & T. C. R. Co. v. Gaither

• Decision Date: 16 October 1897
• Citation: 43 S.W. 266
• Parties: HOUSTON & T. C. R. CO. v. GAITHER.<SMALL><SUP>1</SUP></SMALL>
• Court: Texas Court of Appeals

43 S.W. 266

HOUSTON & T. C. R. CO. v. GAITHER.¹

Court of Civil Appeals of Texas.

October 16, 1897.

Appeal from district court, Collin county; J. E. Dillard, Judge.

Action by Rachel Gaither and others against the Houston & Texas Central Railroad Company. From a judgment in favor of Rachel Gaither, defendant appeals. Affirmed.

The portion of the sixth instruction to which defendant excepted in his fourth assignment of error was as follows: "The jury are further instructed that the term `negligence,' as used in these instructions, means the failure of a railway company to perform any duty required of it by law to secure the safety of its employés, or the failure of such railway company to use ordinary diligence and skill to prevent injury to its employés engaged in operating its engines and cars."

R. De Armond and P. B. Muse, for appellant. R. T. Shelton and Abernathy & Beverly, for appellee.

FINLEY, C. J.

Rachel Gaither filed her original petition on September 7, 1894, claiming damages for the death of J. A. Gaither (she being his surviving wife), charging that her husband, at the time of his death, was in the employ of the Houston & Texas Central Railroad Company, as fireman; that on June 2, 1894, in an accident to the south-bound passenger train, at Howe, by which the engine on which her said husband was employed was turned over and derailed, her husband suffered death by scalding, through the negligence of said railway company. An amended petition, filed on April 1, 1895, made the father and mother of said J. A. Gaither, deceased, parties plaintiff. The grounds of negligence relied upon for a recovery, as set forth in the amended petition, are substantially as follows: (1) The unskillful and unsafe construction of the roadbed, track, and switches, and the defective condition in which they were permitted to remain at the place of the accident; (2) that the cross-ties at the place of accident were not held firmly on the roadbed, but were loose; (3) that the rails were loose, and not firmly attached to the cross-ties, and the rails were not properly fastened together, and insufficient bolts and fish plates were used to hold the rails; (4) that the engine was out of repair, and the iron and wood of same were unsound, rotten, and broken; (5) that the switch was negligently permitted to be open and remain open at place of accident. Defendant answered by general denial, and especially that the wreck which was the occasion of the death was caused by the abstraction of the switch bolt by some party or parties, strangers to and unknown to defendant, and without any negligence on the part of the defendant. Trial was had on October 31, 1896, resulting in judgment against defendant, in favor of Rachel E. Gaither, in the sum of $6,000, and nothing for H. H. Gaither and M. M. Gaither, the father and mother of deceased. From such judgment, this appeal is prosecuted by the railway company.

Material facts proven: It is conceded that J. A. Gaither, deceased, was employed as a fireman on defendant's trains at the time of his death; that death was caused on June 2, 1894, by the overturning of the engine on which deceased was employed, at Howe; and that plaintiffs are related to the deceased as claimed, the material question being, was there negligence on the part of the defendant? It is also conceded that the accident occurred at a switch into a side track; that the target indicated that the switch was set for train to proceed safely down the main track; that the target is connected with two "bridle rods" which are attached to the switch, and control it; that these bridle rods are connected with each other by a knuckle joint into which a pin is inserted; that, on the occasion in question, this pin was out of place, and the switch was not in the condition indicated by the target; and that this fact was the immediate cause of the accident. The switch target indicated that it was set for the main track, but the connecting pin being out of the bridle rods caused the rails to open while the engine was going over the switch, and, after the front wheels of the engine had passed over the switch onto the main track, the rails opened, and the hind wheels of the engine went into the side track, and this caused the derailment and wreck.

The issues of fact upon which there was a contest in the evidence were: (1) How did the switch become open while the target indicated it was set for the main track? (2) Was the defendant guilty of negligence in failing to discover the condition of this switch, and remedying it in time to have prevented the accident?

The evidence of the plaintiff upon the first issue tended to show that the switch was out of repair; that the bolt to the switch rod which held the switch in position was loose; had no key in it; and that it worked out from the jar and shaking of the track, and was liable to work out of its place by the jarring and shaking of the track caused by engines and trains passing over it. The testimony of the defendant on this issue tended to show that the switch was in good condition, but that the bolt had been abstracted by some person not under the control, and without the knowledge, of the railway company. The evidence was amply sufficient to justify the jury in reaching the conclusion that the switch was out of repair, as contended for by plaintiff, and that the switch was open as a result of this defective condition.

Upon the second issue, the evidence was sufficient to justify the conclusion that the switch had been defective for some time, and that the railway company was guilty of negligence in not discovering and remedying this defect. Though the jury might have believed and accepted the theory of the defendant that the rod was abstracted by some person alien to its employment, and without its knowledge or consent, still the evidence indicated that the employés of defendant were not sufficiently watchful as to the condition of this switch, and the jury were warranted by the evidence in concluding that the railway company was guilty of negligence in not discovering that the switch was out of place. No question is made as to the amount of the recovery, and we conclude that the evidence justified a verdict for $6,000 as damages sustained by appellee on account of the negligence of the railway company.

The first assignment of error is as follows: "The court erred in clause 14 of its instruction to the jury in prescribing the highest possible degree of care on the part of defendant in discovering the condition of the switch in time to prevent accident, to entitle plaintiff to verdict." This assignment is in the form of a proposition, and will be so treated, in connection with the following proposition: "Under proper pleadings, defendant is responsible for the exercise of reasonable care in seeing that its appliances were in safe condition, and for reasonable care in discovering a defect wherever it...