International & G. N. R. Co. v. Culpepper

• Decision Date: 06 January 1897
• Citation: 38 S.W. 818
• Parties: INTERNATIONAL & G. N. R. CO. v. CULPEPPER et al.
• Court: Texas Court of Appeals

38 S.W. 818

INTERNATIONAL & G. N. R. CO. v. CULPEPPER et al.

Court of Civil Appeals of Texas.

January 6, 1897.

Appeal from district court, Smith county; Felix J. McCord, Judge.

Action by Alice Culpepper and others against the International & Great Northern Railroad Company. From a judgment for plaintiffs, defendant appeals. Reversed.

John M. Duncan and T. N. Jones, for appellant. Marsh & McIlwaine, for appellees.

JAMES, C. J.

Culpepper was an engineer on one of defendant's trains. Another train was following, which fact appears to have been known to the crew on his train. He stopped his engine over a cattle guard, as was most convenient and customary in such work, in order to go under the engine and remedy a defect, which the evidence shows it was necessary to do in order to prosecute the journey. While under it, engaged in this work, the rear train came up and collided with this train, and he was killed. The court submitted the issues of contributory negligence, and negligence of the conductor in failing to comply with the regulations, and his duty in sending brakemen back to signal the rear train, for the protection of Culpepper while he was under the engine; and, as bearing on the last-named issue, the court submitted the issue whether or not the conductor and engineer were fellow servants, the injury occurring while the act of 1891 was in force. The jury found for plaintiff, which involved the finding that the injury was not due to contributory negligence of the deceased, but that the cause thereof was the negligence of the conductor, and that the latter was not his fellow servant at the time. The errors relate to certain of the charges; to the submission of the issue of fellow servant, under the facts of this case (or, rather, that the evidence clearly showed that they were fellow servants, and the court should have instructed a verdict for defendant); and it is also contended that the act of 1891 being repealed in 1893 by the new act on the subject of fellow servants requires this case to be considered as at common law, although the latter act contained and continued the same provision as in the former, so far as the issues here involved are concerned. In reference to the last of these questions, we have no hesitation in deciding that the law of 1891 is the law of this case. Its repeal would not affect its force as fixing or determining the liability of defendant in cases which arose under its provisions.

In reference to the charges, leaving out of view the submission of the question of fellow servant vel non, we perceive no substantial error, except, possibly, the criticism of one paragraph of the charge (assignment No. 7), in which the court used this language: "Now, if the deceased J. J. Culpepper's own want of care in any degree contributed to the injuries complained of, the plaintiff cannot recover, and you will find for the defendant. If, however, you find that said Culpepper was guilty of negligence, yet if such negligence was not the direct and proximate cause of the injury, but that the injury was caused by negligence of the conductor, and you find that said conductor was not a fellow servant, but a vice principal, then defendant company would be liable, and you will so find." The objection to this clause is that it did not correctly state the law of contributory negligence, but required the jury to believe, before they could find for defendant, that the negligence of Culpepper was the direct and proximate cause of the injury, when the correct rule was and is that if Culpepper was guilty of the slightest want of ordinary care, contributing proximately to his injury, plaintiffs could not recover. It seems to us that the complaint centers in the use of the word "the" instead of "a" before the words "direct and proximate cause." At appellant's request, the court gave certain charges which were well calculated to remove this defect, if defect it be; and, taking the charges together, we would not be inclined to view this as prejudicial to defendant. We need not make a distinct decision of this question, as it appears to us the judgment is rendered fatally erroneous by the submission of the issue of fellow servant, in view of undisputed evidence. Assuming that there is evidence to establish the fact that the conductor had charge and direction of the train, the trainmen, and of the engineer, in the movements and operation of the train, yet the testimony is clear and uncontradicted that he...