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

• Decision Date: 01 January 1878
• Citation: 49 Tex. 181
• Parties: HOUSTON AND TEXAS CENTRAL RAILWAY CO. v. C. J. DUNHAM.
• Court: Texas Supreme Court

49 Tex. 181

HOUSTON AND TEXAS CENTRAL RAILWAY CO.

v.C. J. DUNHAM.

Supreme Court of Texas.

1878.

ERROR from Harris. Tried below before the Hon. James Masterson.

The defendant in error was brakeman on one of the passenger trains of the plaintiff in error, and while in the discharge of his duty was injured, by being thrown from the track with the sleeper. The evidence showed that his right hip joint was dislocated, his pelois bone on the same side broken, and other and serious injuries inflicted, quite unintelligible to the ordinary legal reader, from the formidable terms employed by the physician in describing them. He was injured for life; can never be entirely cured.

He sued for damages on account of his injuries thereby sustained, and in his original petition alleged they were caused by the negligence of defendant's servants, as well as by the defective condition of its track.

Plaintiff in error excepted specially to so much of said petition as complained of the negligence of the defendant in error's fellow-servants, because it was not averred that they were unskillful, incompetent, or unfit for the service in which they were employed. The exception was sustained, and so much of the petition as set up the negligence of co-employés was stricken out.

Plaintiff below then amended his petition, by averring that his injuries were caused by the defective condition of the track, as set forth in his original petition; and that defendant below knowingly permitted it to be and remain in such defective condition for a long time prior to the injuries.

In his original petition, it was alleged that the defendant below, knowing the track to be in an unsafe condition, permitted it to remain filled with rotten ties.

Defense, general denial.

Verdict and judgment for plaintiff below for $7,000; motion for new trial; motion overruled, and notice of appeal. The facts of the case are stated, as far as necessary to its understanding, in the opinion.

Baker & Botts, for plaintiff in error.

I. As between master and servant, for injuries sustained by the latter through the negligence of a fellow-servant engaged in the same business, the master is not liable, unless there be negligence in the appointment of such negligent servant, or in retaining him after notice of his incompetency. (Whart. on Neg., sec. 224; Warner v. Erie R. R. Co., 39 N. Y., 468;Wright v. N. Y. Central, 25 N. Y., 562;Laning v. N. Y. Central, 49 N. Y., 528; and cases cited in Whart. on Neg., sec. 224, note 1; Cooley on Liability of Master to Servant, April No. (1876) of Southern Law Review, 119-121; Sher. & Red. on Neg., secs. 87, 89; 40 Mo., 167;47 Id., 567.)

II. The plaintiff below, as brakeman on a train, and the road-master and section men whose duty it was to keep the track in repair for the safe running of the train, were fellow-servants. (Robinson v. Houston and Texas Central R. R. Co., 46 Tex., 549. And in addition to the authorities there cited, we refer to the following: Wright v. N. Y. Central, 25 N. Y., 565;Boldt v. N. Y. Central, 18 N. Y., 432;Russell v. Hudson River R. R. Co., 17 N. Y., 134;Gilman v. Eastern R. R. Co., 10 Allen, 233;Wonder v. Baltimore and Ohio R. R., 32 Md., 411; Sher. & Red. on Neg., sec. 100.)

The charge refused was to the effect that defendant is not liable, if the jury believe from the evidence that it used ordinary care in selecting proper servants to do the particular work complained of. The jury was not told by the court if they so believed to find for the defendant; nor did the court tell the jury that the diligence required of the defendant consisted in the selection of competent men, and in such number as the demands of the work required.

III. As the proof showed that defendant kept its road in repair by means of section men and a road-master charged with that duty, proof that, in the opinion of witnesses, the accident complained of was caused by rotten ties in the track was not sufficient to entitle plaintiff to recover, if true. It devolved on him to go further, and prove that defendant had been negligent in selecting competent men, or a sufficient number of them for the work; or that the railroad company, or its proper officer charged with the duty of seeing that the track was kept in good repair, had notice of its defective con dition, and with such notice failed to repair it, as alleged in the petition.

Likens & Stewart, for defendant in error.

I. The charge refused by the court is not applicable to the issues formed by the pleading. (Love v. Wyatt, 19 Tex., 312; Sayles' Prac., sec. 600.)

II. The law stated in the rejected charge was fully and clearly given to the jury by the court in the first part of its second general charge. (Keeble v. Black, 4 Tex., 69.)

III. The rejected charge does not contain a correct statement of the law.

The charge refused by the court, which is here assigned as error, substantially, is to the effect, that if the railway company exercised ordinary diligence in the selection of competent employés, and sufficient in number to keep its road in good repair, and furnished material therefor sufficient in quantity and quality, and that plaintiff was injured by defective track, he could not recover, unless it appeared from the evidence that the defect in the track was known to those whose duty it was to examine the road and report it, or might have been known by the use of ordinary care, and that they failed to repair it after obtaining such knowledge; that the proof of rotten ties being the cause of accident, alone was not sufficient; that he must prove negligence on the part of the company, in not employing a sufficient number of track hands to keep the road in order, or that the company, or its proper officers charged with the duty of seeing that the track was in good order, had notice of such rotten ties, and had neglected to remedy the evil. (1 Red. on Law of Railways, 4th ed., sec. 2, p. 518; Whart. on Neg., 206-224; Snow v. Housatonic R. R., 8 Allen, (Mass.,) 441; Ford v. Fitchburg R. R., 110 Mass., 260; Nashville R. R. v. Elliot, 1 Cold., (Tenn.,) 611; Gilman v. Eastern R. R., 10 Allen, (Mass.,) 233, and 13 Allen, (Mass.,) 433; Greenleaf v. Ill. Central R. R., 29 Iowa, 36-49;Greenleaf v. D. & S. R. R., 33 Iowa, 52;Flike v. Boston and Albany R. R., 53 N. Y., 549; Faulkner v. Erie R. R., 49 Barb., (N. Y.,) 327.)

IV. The law upon the subject treated of in the rejected charge was correctly stated by the court in its general charge to the jury. (Keeble v. Black, 4 Tex., 69;Texas and Pacific R. R. v. Murphy, 46 Tex., 356;Snow v. Housatonic R. R., 8 Allen, 441;Ford v. Fitchburg R. R., 110 Mass., 260; Nashville R. R. v. Elliot, 1 Cold., (Tenn.,) 611, and authorities before cited under our first proposition to this assignment.)

GOULD, ASSOCIATE JUSTICE.

This was a suit by a brakeman to recover damages for injuries received by the sleepingcar being thrown from the track, the alleged cause of the accident being the negligence of the railroad company in knowingly permitting its road-bed to remain out of repair and filled with rotten ties. In the original petition, there were also allegations of the negligence of the fellow-servants of plaintiff, but this part of the petition was excepted to, and the exception sustained. The cause was tried on an amended petition, charging that the accident was caused by the defective condition of the track and road-bed. There was evidence by several witnesses as to rotten ties, broken in pieces, found, after the accident, where the car first left the track, and which in their opinion caused the accident. They testify that two or three ties were completely rotten, and that it was plain to be seen by any one. On the other hand, the conductor and engineer say they had seen nothing wrong in the condition of that part of the road, and they do not know what caused the accident. The road-master testified that it was his duty “to see that the track was kept in good repair, and to furnish supplies for that purpose”; that this section was six miles long; on it were eight section hands, including the section boss, who, as a general thing, passed over this section once or twice a day, to examine the road and see that it was in good condition; that at the place where the accident occurred, a few new ties had been put in the day before; when too much decayed, ties are taken out and new ones put in; this was then being done along the whole line of the road; considered that section safe and good; could not tell the cause of the accident; saw, after the accident, six or eight broken ties, as he supposed, by the trucks, but none that could be called rotten; as long as there are enough sound ties under a rail to hold it in its place, one or two rotten ones would not jeopardize the safety of a train; thinks the broken ties were sound enough to hold the rail in line in ordinary use.

The purport of the charge was, that if the accident was, without plaintiff's fault, caused by rotten ties, which could have been discovered by defendant by ordinary care, but were permitted to remain...