Int'l & Great N. R.R. Co. v. Halloren
| Decision Date | 18 March 1880 |
| Docket Number | Case No. 1059. |
| Parties | THE INTERNATIONAL AND GREAT NORTHERN RAILROAD CO. v. JAMES HALLOREN. |
| Court | Texas Supreme Court |
APPEAL from Harris. Tried below before the Hon. James Masterson.
Suit by James Halloren, appellee, to recover damages from the International and Great Northern Railroad Company, appellant, for injuries received by him while a passenger on its railroad between Palestine and Crocket. He alleged that a portion of the train was thrown from the track; that he was injured thereby, and that this resulted from “the gross negligence, carelessness, and mismanagement of the company's agents and employees, and by reason of the unsafe and dangerous condition of the road.”
The evidence of the plaintiff seemed to establish conclusively that the injuries sustained by him, while a passenger on defendant's road, were of a serious character, such as would disable him for life, leaving him incapable of earning a livelihood for himself, and yet would not shorten his existence.
The company pleaded--
1st. The plea of “not guilty” by general denial.
2d. That appellee was not injured by appellant's train, but the ills of which he complains were results of disease and sickness.
3d. If injured by appellant's train, the injury was the result of an unavoidable and unforeseen accident incident to railway travel, and which could not be foreseen or provided against by human foresight and skill. This plea then avers that appellant's road at the point of the accident was properly constructed by experienced workmen, and was maintained by the most approved means for that purpose; that it was in safe condition at the time of the accident, as far as human foresight could determine; that its train was in good and safe condition, and properly manned with experienced and competent employees; that the accident was caused by a sudden and unprecedented rain-fall at the place of the accident, which caused the water to collect in a larger body than had before been known, and which so softened the embankment at the place of accident that it gave way under the train and caused the accident complained of. Verdict and judgment for appellee for $6,000.
The company proved that the place at which the accident occurred was on high land not subject to overflow or inundation, and on the side of a hill; that it occurred on an embankment one hundred and fifty feet long and three and a half feet above the average bottom of the little pond formed by the embankment; that the surface water at this point had no opportunity to collect, because there was a ditch capable of carrying off an area of seven feet of water to a culvert which took the water to the other side of the road and thence down the hill; that the head of the ditch was only two and a half feet above the lowest point in the pond or place where the water collected, and after the accident occurred the embankment remaining showed that the water had not been nearer the top of the embankment than a foot and a half; that the place at which it collected and caused the accident was not capable of holding over one thousand barrels of water. The accident was caused by a heavy flow of water down the hill, which penetrated through the base of the embankment and so softened and undermined it, that when the weight of the engine came over the spot the embankment gave way under the train. The cars were examined at Palestine by the inspector at 9 o'clock that night, and all were in good order and condition. The engine and train were in good condition, using air brakes, and had all necessary brakemen. The train left Palestine at 9 o'clock, and the accident occurred at 10. The schedule time was twenty-two miles an hour, but at the time of the occurrence was running only thirteen to fourteen miles an hour. The engineer was a first-class one. He had the head-light burning, and could see the track as well as in daylight, and when approaching the place at which the accident occurred the track had its usual appearance to an engineer who had been running over it every third day since it was built, in the fall of 1872. If the track had been washed out before his arrival, the engineer could and would have seen it; but when the engine was passing over the spot that gave way, he felt the engine sinking and applied the brakes. The engine, tender, and two baggage cars passed over safely; but the second-class passenger car sank in and leaned over, and this and the first-class coach and sleeper were thrown off the track.
After the accident, it was discovered that the embankment had washed or slided out about the length of a rail, or a rail and a half; the rails were all connected, no place broken, and the ties were hanging to the rails. The ties and rails were all comparatively new and sound, and the accident could not have occurred from any defect in either the ties or the rails. That part of the road was built in the fall of 1872. The engineer of construction had the reputation of a first-class man in his profession; the contractors for the construction were men of high reputation for skill and integrity in their business, and the road was built first-class. It was maintained by a sufficient number of men to keep it in good repair, and they were competent and did their duty. At the place of the accident, and up to the time it occurred, the road was in first-class condition as to safety for passenger travel, and the speed at which the train was running was a safe speed at any time on that road. No accident had occurred at that point before this one, and none since. On the day the accident occurred it had been raining at Palestine, the headquarters of appellant, but not in such quantity as to indicate at that point any danger in running trains. But late in the evening, as shown by witnesses who lived in the immediate vicinity of the place of the accident, there fell the hardest rain at and about the locality of the accident which any of the witnesses had ever seen in that part of the country. About one hundred and twenty-five minutes before the accident occurred, defendant's north-bound passenger train passed over the place of accident, and the track was then in good condition. After this, and before the accident occurred, the section boss in charge of that section of the road for the purpose of watching the track and keeping it in good repair and condition, passed over the place of accident for the purpose of ascertaining whether the track had been injured in any way by the extraordinary rain. He found the track intact--in good and safe condition as far as he could ascertain; and within half an hour afterwards the south-bound train came along and met with the disaster complained of. The witnesses who testified to the rain-fall being unprecedented show that the rain of which they speak fell late in the evening, and that it was not a general rain.
Baker & Botts, for appellant.
I. So much of the charge of the court as made the appellant's liability depend on the “manner and speed of running the train,” and in this particular involved a question of negligence in appellant which was not raised either by the pleadings or proof, was error, when considered in connection with the facts.
II. There was nothing in plaintiff's pleadings to justify the charge as to the manner and speed of the train, nor was there in the testimony. (Shear. & Red. on Neg., sec. 478; Warner v. New York Central, 44 N. Y., 466.)
W. B. Hamblin, for appellee.
I. The charge of the court was applicable to the facts, and is correct.
II. The proof sustains the verdict, and the court should not disturb the judgment.
The first and second errors assigned in this case bring into review so much of the general charge of the court as, in effect, instructed the jury that the liability of the...
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