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

• Decision Date: 27 March 1899
• Citation: 50 S.W. 333
• Court: Texas Supreme Court
• Parties: HOUSTON & T. C. R. CO. v. STEWART.

50 S.W. 333

HOUSTON & T. C. R. CO. v. STEWART.

Supreme Court of Texas.

March 27, 1899.

Error to court of civil appeals of First supreme judicial district.

Action by Henry A. Stewart against the Houston & Texas Central Railroad Company. From a judgment for plaintiff, defendant appealed to the court of civil appeals, which affirmed the judgment (48 S. W. 799), and defendant brings error. Reversed.

Frank Andrews, for plaintiff in error. Ewing & Ring, for defendant in error.

BROWN, J.

Stewart sued the railroad company in the district court of Harris county to recover damages for injuries received by him while in its employ and through its negligence. The railroad company pleaded a general denial, that the plaintiff was injured through his own negligence, and that the injuries received by plaintiff were caused by the negligence of his fellow servant. The trial was had before a jury, and verdict and judgment rendered in favor of Stewart against the railroad company, which was affirmed by the court of civil appeals.

The facts necessary to an understanding of the questions presented by this writ of error are, in substance: On January 22, 1897, regular freight train No. 7 on the road of the plaintiff in error was on its regular run from Houston to Hearne. Its regular time was shown on the schedule or time card, and its speed was limited to from 12 to 16 miles per hour, which was known to the engineer on train No. 103. After regular train No. 7 had departed from Houston, extra freight train No. 103 left the city of Houston, at 5:20 a. m. of the same day, for Hearne, running under the following orders, which were delivered to the engineer and conductor: "(1) No. 4, engine 141, will wait at Thompson until 6:05 a. m. for extra 103, north. [Signed] J. M. L." Below it were written the words, "Make twenty-five miles per hour." "(2) No. 6, January 22, 1897, engine 103, will run extra from Houston to Hearne, and has right of track against number 8, engine 127, and number 12, engine 129, Houston to Hempstead. [Signed] J. M. L." The initials were those of the superintendent of the railroad company, but the orders were delivered from the train dispatcher. The witnesses differed as to the meaning of the words, "Make twenty-five miles per hour." The train dispatcher testified that it applied as far as Thompson only, while the engineer and conductor on 103 understood it to apply to the whole way to Hearne, and acted upon that interpretation; and the court of civil appeals concluded it was a reasonable construction of the language. Henry A. Stewart was fireman on 103, and Higgins was engineer in charge of that engine. There is a conflict in the evidence as to what control or supervision the engineer had over the fireman, but the evidence is sufficient to justify the conclusion of the court of civil appeals that it was of such a character as to make him a vice principal of the company as to Stewart, and not a fellow servant. On the trip from Houston, extra No. 103, under telegraphic orders sent from the office of the train dispatcher, met and passed a number of trains going in the opposite direction, viz. from Hearne to Houston. Regular train No. 7 was about three hours behind its regular time, of which fact neither the conductor nor the engineer on 103 was notified by the train dispatcher, nor by any station agent. If No. 7 had been on time, it would have reached Hearne before the arrival of 103. The evidence was sharply conflicting as to whether it was the duty of the train dispatcher to furnish notice to the conductor and engineer of 103 of the whereabouts of No. 7, or that the engineer on 103 should inform himself of such fact by inquiry at the different stations. Two train dispatchers testified that, concerning trains going in the opposite direction, it was the duty of the train dispatcher to give orders and directions to 103 as to the whereabouts and place of meeting of such opposing trains, but that it was the duty of the engineer upon the extra train to inquire at the different stations if he needed information of the whereabouts of regular train No. 7, running in the same direction. Stewart and the engineer on the train (Higgins) both testified that it was the duty of the train dispatcher to furnish information with regard to No. 7, and that the extra train would only stop at a station if a red board or light, which is a signal for orders, was put up, and would indicate that the station agent had orders for that train. When 103 reached a station known as "Benchley," it was running at a speed of 25 or 30 miles per hour. It was foggy, and very difficult to see an object at a considerable distance ahead. There was no signal out for orders at Benchley, and the engineer did not bring his train to a halt at that station, but passed by, and, just as he was going out of the switches at the north end, he discovered the rear end of train No. 7 but a short distance ahead of him. The engineer at once put on the air to its fullest capacity to stop the train, and he and the fireman leaped from the cab of the engine. The...