Houston & Tex. Cent. Ry. Co. v. Fowler

• Decision Date: 14 March 1882
• Docket Number: Case No. 1197.
• Citation: 56 Tex. 452
• Court: Texas Supreme Court
• Parties: HOUSTON & TEXAS CENTRAL RAILWAY COMPANY v. MARY A. FOWLER ET AL.

56 Tex. 452

HOUSTON & TEXAS CENTRAL RAILWAY COMPANY

v.MARY A. FOWLER ET AL.

Case No. 1197.

Supreme Court of Texas.

Mar. 14, 1882.

APPEAL from Waller. Tried below before the Hon. Wm. H. Burkhart.

The statement of the case by appellant's brief, being admitted correct by appellees' counsel, is adopted as follows:

Jacob Frank Fowler, deceased, was an employee in the service of the appellant as yardmaster at Hempstead, Waller county, Texas, when, on the 3d day of December, A. D. 1875, he was ordered by his superior officer, the assistant superintendent, to “run to wreck on Union Hill” to get the passengers from a train which was disabled. In the execution of that order Fowler met with an accident which resulted in his death. His widow and minor children brought this suit to recover damages resulting to them as surviving widow and children. The trial in the court below resulted in a verdict and judgment for the plaintiffs in the sum of $14,000, i. e., $4,000 for the widow and $2,000 for each of the five minor children. The defendant prosecutes this appeal.

Plaintiffs alleged that Jacob Frank Fowler, deceased, was, on the 3d of December, A. D. 1875, in the service of the defendant in the capacity of yardmaster at Hempstead.

That his duties as yardmaster were special, and were to be performed within the limits of the depot yard, switches and railway grounds adjacent to the depot and station at that place.

That on that day a violent storm of wind and rain prevailed along the entire line of defendant's railway.

That the defendant's railway was defectively constructed, and its road-bed, culverts and bridges were insufficient to resist the action of said storm, and several culverts and bridges were washed away on its line, and its road-bed, etc., injured and rendered unsafe.

That a railway train was thrown from the track and wrecked north of Hempstead, and between Hempstead and Courtney.

That defendant's assistant superintendent at Houston, C. A. Burton, telegraphed said Fowler, deceased, “V. 3. Fowler and engineer. Run Hempstead to wreck on Union Hill and return regardless of all trains, 12. C. A. B. Fowler, get back as soon as you can. Want you to go and get the passengers from No. 2. C. A. B.”

That, in obedience to said telegraphic order, Fowler immediately started to go to the wrecked train.

That about two miles north of Hempstead the engine on which Fowler was was precipitated into a ravine where a culvert had been washed away by the storm.

That Fowler was then and there injured, and of the injuries received died that same day.

That the defendant and its assistant superintendent was informed, and well knew the condition of the railway, track, culverts and bridges, and the extent of the damage thereto wrought by the storm, and Fowler was ignorant thereof.

That the defendant and its assistant superintendent, C. A. Burton, were guilty of gross and wanton negligence in sending said Fowler out over said railroad at the time and under the circumstances, whereby the death of the said Fowler was caused.

That the plaintiffs sustained damage in the sum of $30,000 by reason of the death.

The defendant answered by:

General demurrer.

Plea of “not guilty.”

General denial.

Special answer averring:

That said Fowler was then and there in the service of the defendant, and in the discharge of the duties for which he was employed and paid.

That the defendant's railway, track, bridges and culverts were originally constructed, kept and maintained in good condition and repair, fit and proper for safely conducting its business as common carriers of freight and passengers.

That the particular culvert which was so washed out was a stone culvert, well built and skillfully constructed, and was kept and maintained in a good and secure condition.

That at the time of the happening of the accident a rain storm of unusual severity was and had been prevailing, deluging the earth with water, converting ditches, drains, branches and streams into rushing torrents, and by reason thereof the said culvert was undermined and washed out.

That the said passenger train No. 2 was on the same day disabled, impeded and delayed in the neighborhood of Hempstead, and required assistance, and the said Fowler was ordered to its relief.

That in accordance with the rules and regulations of the defendant railway company, well known to Fowler, and in view of which he entered and remained in defendant's service, the execution of said order was an obligation which he owed as a matter of duty.

That the death of said Fowler was the result of a casualty incident to the service in which he was engaged, and this defendant is not responsible therefor.

The evidence was to the effect that Fowler was an experienced hand and had as good opportunity to know the danger as the company, he being at Hempstead in the midst of the storm, and the assistant superintendent at Houston; that both were ignorant of the danger. That the culvert had been constructed in a durable and workmanlike manner, under the supervision of competent engineers, and so as to resist all ordinary storms.Geo. Goldthwaite, for appellant.

Breedlove & Ewing, for appellees.

I. One contracting to perform labor, or to render service, thereby takes upon himself such risks, and only such, as are necessarily and usually incident to the employment. 44 Cal., 187;13 Am. Rep., 163 and note; Wood on Master and Servant, sec. 326.

II. If the master has knowledge that the particular employment, or the particular service, is, from extraneous causes, hazardous or dangerous to a degree beyond what it fairly imports, or is fairly understood to be, he is bound to inform the servant of the fact; and if he fails to do so he is liable to such damages as the servant sustains by reason of such causes. 44 Cal., 187;25 Ala., 659;73 N. Y., 38;52 Ill., 401;13 Am. Rep., 163-4 and note; 29 Am. Rep., 97;4 Id., 616.

III. If the injury resulted from exposure to extraordinary risks, which were known to the master and unknown to Fowler, then the master is liable for all damages sustained by Fowler. 45 Ill., 201; Wood on Master and Servant, secs. 326, 336, 356, 364, 368, 387-8.

IV. The master is bound to warn the servant of latent dangers, and is bound not to expose the servant to dangers of which he knows, or has reason to know, the servant is not aware. Wood on Master and Servant, secs. 349, 352, 3, 4 and 5; 45 Ill., 201.

BONNER, ASSOCIATE JUSTICE.

I. One of the grounds upon which the plaintiffs below, Mrs. Mary A. Fowler and her children, seek to recover in this case is, that the deceased husband and father, Jacob F. Fowler, came to his death in the attempt to execute an order issued to him by C. A. Burton, as assistant superintendent of the defendant company, to perform a dangerous duty, not within the scope of the employment of Fowler as yardmaster.

Mr. Thompson, in his work on Negligence, thus states the rule in such cases:

“Where the master orders the servant into a service which he did not undertake to perform, and while in such service the servant is injured, his right to recover damages of the master may depend upon a variety of considerations. The master will not be liable for any injuries resulting to the servant from causes open to the observation of the servant and which it requires no special skill or training to foresee will be likely to occasion him harm, although he was at the time engaged in the performance of a...