Missouri, K. & T. Ry. Co. of Texas v. Wise
| Decision Date | 01 April 1908 |
| Citation | 109 S.W. 112 |
| Parties | MISSOURI, K. & T. RY. CO. OF TEXAS v. WISE. |
| Court | Texas Supreme Court |
Action by Harry G. Wise against the Missouri, Kansas & Texas Railway Company of Texas. There was a judgment of the Court of Civil Appeals (106 S. W. 465) affirming a judgment for plaintiff, and defendant brings error. Affirmed.
Coke, Miller & Coke and Smith & Wall, for plaintiff in error. J. H. Wood and C. B. Randell, for defendant in error.
Defendant in error, while in the service of plaintiff in error as brakeman, was hurt near Gibson in the Indian Territory on the 9th day of June, 1905, and afterwards brought this action and recovered the judgment now before us in Grayson county, Tex., for damages, on the ground that his injuries were caused by the negligence of the railway company.
The evidence is sufficient to sustain his allegations that, in the proper discharge of his duties, he stood upon the step of the pilot of the engine drawing the train upon which he was acting as brakeman, and, while riding there in order to be in readiness to throw a switch towards which the engine was moving, he was caused to slip from the step by reason of the facts that from use it had become slick and was inclined downward instead of upward, as it should have done, from which causes it was defective and dangerous for such uses, and also because the engine passed over a "low joint" in the track negligently permitted by defendant to exist there, causing a jolt, which helped to throw him off the step. There were also allegations and evidence that the engineer carelessly produced a jerk in the movement of the engine, which may have caused or contributed to the occurrence; but the trial court in unmistakable language instructed the jury that there could be no recovery for the negligence of the engineer, for the reason that, under the law of the Indian Territory, he was a fellow servant of the plaintiff. The charge allowed a recovery only upon the ground of negligence of the company in failing to exercise ordinary care to keep the track and the step of the engine in a safe condition, and in case such negligence proximately caused, or concurred with that of the engineer in causing, plaintiff to fall from the step.
The present complaint of the plaintiff in error is that there was error in some of the instructions of the trial court concerning the law of the territory as to the relation between the plaintiff and those of its employés whose duty it was to see to the condition of the track and of the step of the engine; its contention being that by such law the plaintiff and such employés were fellow servants. It is conceded that the question depends upon the common law, and it is not claimed that the courts of the territory, or the Supreme Court of the United States, to which cases may go upon appellate proceedings from those courts, have determined the common law upon the question to be otherwise than it was declared to be by the decisions of this court rendered before the changes made by our recent statutes; but it it urged that certain decisions of the Supreme Court of Arkansas have so declared the common law as to make such employés as those in question fellow servants, and that the rule as thus declared had been made the law of the territory by Act Cong. May 2, 1890, c. 182, § 31, 26 Stat. 94, which put in force therein certain statutes of Arkansas, including one which, in general terms, had adopted for that state the common law of England. We shall not pause to determine what would be the result were those decisions acknowledged to have been the law in the Indian Territory. We remark, however, that, while the decisions referred to may be admitted to differ in some particulars from those of this court, it is by no means clear that the points of difference are material to this case. Railway Co. v. Harper, 44 Ark. 524; Railway Co. v. Gaines, 46 Ark. 555; Railway Co. v. Rice, 51 Ark. 467, 11 S. W. 699, 4 L. R. A. 173; Railway Co. v. Brown, 67 Ark. 295, 54 S. W. 866; Western Coal & Mining Co. v. Buchanan (Ark.) 102 S. W. 694. Pursuit of this line of inquiry would not, in our opinion, be the true way in which to reach a solution of the question in this case. The law which controls is that which existed in the Indian Territory when the tort is alleged to have been committed, and not that of Arkansas. Any inquiry into the law of that state would be made only for the purpose of ascertaining the law of the territory upon the assumption that the rules declared in the former constituted the law of the latter. Neither the law of Arkansas nor that of the territory has been proved; but it is insisted that, inasmuch as the law of the latter had been established by an act of Congress, we should take judicial notice of it. If this is true, it is the law of the territory, of which such notice is to be taken, and we may ascertain that more directly than by inquiring into the law of Arkansas and assuming it to have been the same as that of the territory. We think it is true that we must take notice of the act of Congress; and, as it adopted for the territory certain chapters of Mansfield's Digest of the law of Arkansas, the effect was the same as if the provisions of those chapters had been originally adopted by Congress, and were contained in the act passed by it. We, therefore, take notice of the provisions of Mansfield's Digest precisely as if they were provisions of the act of Congress. This has been held by the Courts of Civil Appeals for many years, and by this court in passing upon applications for writs of error. Appollos v. Staniforth, 3 Tex. Civ. App. 502, 22 S. W. 1060; Belt v. Railway, 4 Tex. Civ. App. 231, 22 S. W. 1062, and authorities cited; Railway v. Brown, supra.
In order that the decisions of the federal courts to which we shall refer may properly be understood it is proper to state that the act of Congress adopted for the Indian Territory much of the statute law of Arkansas contained in Mansfield's Digest. It also adopted chapter 20 of that digest, by which the common law of England was put in force in Arkansas. In cases originating in the Indian Territory in which questions have arisen under the local statutory law thus imported from Arkansas the federal courts have held that, as such questions depended upon the local statutes, construction put upon them by the Supreme Court of Arkansas in their application to such questions before their adoption for the territory should control. Robinson v. Belt, 187 U. S. 41, 23 Sup. Ct. 16, 47 L. Ed. 65; Blaylock v. Muskogee, 117 Fed. 125, 54 C. C. A. 639. In the...
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