Missouri, K. & T. Ry. Co. of Texas v. Hawley

• Citation: 123 S.W. 726
• Parties: MISSOURI, K. & T. RY. CO. OF TEXAS v. HAWLEY.<SMALL><SUP>†</SUP></SMALL>
• Decision Date: 04 December 1909
• Court: Court of Appeals of Texas

123 S.W. 726

MISSOURI, K. & T. RY. CO. OF TEXAS v. HAWLEY.^†

Court of Civil Appeals of Texas.

December 4, 1909.

Rehearing Denied January 1, 1910.

Appeal from District Court, Grayson County; J. M. Pearson, Judge.

Action by P. J. Hawley against the Missouri, Kansas & Texas Railway Company of Texas. Judgment for plaintiff, and defendant appeals. Affirmed.

Coke, Miller & Coke and Head, Dillard, Smith & Head, for appellant. J. H. Wood and Jas. P. Haven, for appellee.

TALBOT, J.

On April 30, 1908, appellee was a brakeman on one of appellant's freight trains between Dallas, Tex., and Denton, Tex., when he was caused to fall from one of the cars incorporated in the train by the giving way of an insecurely fastened handhold on said car. To recover for serious injuries sustained in the fall he brought this suit, and upon a trial before a jury a verdict and judgment was rendered in his favor for the sum of $14,583, from which appellant has perfected an appeal to this court.

Plaintiff alleged, in substance, so far as is necessary to state, that the defendant was a corporation, duly incorporated under and by virtue of the laws of the state of Texas, with its principal office in the city of Dallas, Dallas county, Tex. That all of its lines of railway are situated within the limits of said state of Texas, and it operates and propels all of its trains within the limits of said state of Texas, and owns, controls, and operates no lines of railway or railway cars outside of said state of Texas. That J. J. Garson is the local agent of said defendant, representing it in Grayson county, and resides in the city of Sherman in said state and county. That heretofore, to wit, on April 30, 1908, plaintiff was in the employment of the defendant in the capacity of a brakeman on its freight trains. That on said date he was in the due performance of his duties as a brakeman on one of defendant's freight trains, and that, while said freight train was passing through Denton county, and was in said county of Denton, and while it was in motion, going at the rate of about 30 miles an hour, it became necessary for plaintiff, in the performance of his duties, to pass along said train, going to the rear thereof. That while undertaking to climb from a flat car onto a box car, the handhold he used for the purpose of ascending to the top of said car pulled loose and gave way, thereby throwing plaintiff with great force and violence upon the ground, inflicting upon him serious, painful, and permanent injuries. That at the time plaintiff was injured his run was between the city of Dallas, Dallas county, Tex., a terminal at one end, and the city of Denton, Denton county, Tex., a terminal at the other end; said cities being about 35 miles apart, said railway connecting said points, and being entirely within the state of Texas. That the train that plaintiff was working on at the time he was injured incorporated the car from which he fell, as aforesaid, in said train at said city of Dallas, and took the same out of said train, and left it at said city of Denton. Plaintiff does not know what point was the final destination of said car, and he has no information in his possession by which he can get said information, but that said information is within the peculiar knowledge of the defendant, as it is the duty and custom of the defendant to keep a record of such matters. The record is, however, not accessible to plaintiff. That the car from which plaintiff fell, plaintiff is informed and believes, and upon such information and belief states the fact to be, was car S. R. L. No. 4219. That if plaintiff is mistaken in the name and number of the car, then he says that it was the same car being hauled by said train at said time, and between said points as aforesaid, and the name and number of said car is within the peculiar knowledge of said defendant, because it is its duty and custom to keep a record of all such matters. That the defendant was then and there guilty of gross carelessness and negligence in this: That the wood of the box car where said handhold was fastened was old, worn, rotten, soft, dangerous, and unfit for use. That the lag screws and bolts, which hold said handhold in place, were old, worn, rusty, the threads thereof filled with wood and worn off. That the same were placed in a crack between two planks on said car, and said planks had separated. That by reason of all of which said handhold was caused to come loose and throw plaintiff to the ground, and injure him, setting forth the nature of his injuries. That all of said facts were well known to the defendant at and prior to the time plaintiff received his injuries, or could have been known by the use of ordinary care, but was unknown to plaintiff.

The defendant pleaded general and special demurrers to plaintiff's petition, a general denial and that plaintiff was guilty of contributory negligence in unnecessarily attempting to climb upon the car while the train was in motion at the time he was injured. The special demurrers challenged the sufficiency of plaintiff's petition, on the ground that "it does not show whether at the time plaintiff was injured defendant was or was not a common carrier by railroad engaging in commerce between two or more of the several states or territories of the United States," and on the ground that: "The facts alleged do not show whether the liability of defendant is or is not regulated by the act of Congress passed April 22, 1908 (Act April 22, 1908, c. 149, 35 Stat. 65 [U. S. Comp. St. Supp. 1909, p. 1171]), entitled `An act relating to the liability of common carriers by railroad to their employés in certain cases.'" These demurrers were overruled, and this action of the court is made the basis of appellant's first and second assignments of error. The proposition under the assignments is as follows: "Inasmuch as, if the defendant was a railroad engaging in interstate commerce, and plaintiff was in its employ in connection therewith, at the time he was injured, his cause of action and defendant's liability would be governed by, and founded upon, the act of Congress passed April 22, 1908, entitled `An act relating to the liability of common carriers by railroad to their employés in certain cases,' while, if defendant was not so engaged, the rights of the parties would be governed by and founded upon the fellow servant and assumption of risk statutes, and other laws of the state of Texas, the defendant by special exception had the right to require plaintiff to allege in his petition such facts as would enable it to determine which of these laws applied." We think the assignment should be overruled. The allegations of plaintiff's petition affirmatively show that at the time he received his injury the defendant was engaged in intrastate commerce, and not interstate commerce. Therefore, any idea that the liability of the defendant for the injury inflicted upon plaintiff was regulated and governed by the act of Congress referred to is excluded, and the applicability of the laws of Texas to the facts, as fixing and governing the rights of the parties, is made certain. As has been seen, plaintiff alleged that the defendant owned and operated various lines of railroad for the carriage of passengers and freight; that all of its lines of railway are situated within the limits of the state of Texas; that it operates and propels all of its trains within the limits of said state, and owns, controls, and operates no lines of railway or railway cars outside of the state of Texas; that at the time plaintiff was injured, his run was between the city of Dallas, Dallas county, Tex., a terminal at one end, and the city of Denton, Denton county, Tex., a terminal at the other end; that the car from which he fell was incorporated in the train on which he was working at said city of Dallas, and taken out and left at the said city of Denton. However, if the petition is not subject to the foregoing construction, still it is not demurrable, we think, for the reasons claimed. If plaintiff's petition does not disclose that the action arises under the federal statute mentioned, and it does not, then it must be said that he is not seeking to recover for an injury received through the negligence of defendant while the defendant was engaged in interstate commerce, and the sufficiency of his pleading must be tested by the state law; the provisions of said statute not being involved. We have found no case in which the point has been decided, but Mr. Thornton takes the above view of the question, as expressed in section 107 of his recent publication, entitled, "A treatise on the Federal Employers' Liability and Safety Appliance Act," and we think it the correct one.

Again, we think the allegations of the petition are to the effect that whether defendant was engaged in interstate commerce was a matter about which plaintiff had no knowledge or information, but was a fact peculiarly within the knowledge of the defendant. In such a case the pleader, under our practice, is relieved from the necessity of using that degree of accuracy and certainty which would be required were the facts known to him. Townes on Texas Pleading, p. 291. Railway Co. v. Easton, 2 Tex. Civ. App. 380, 21 S. W. 575, was a suit for personal injuries, and the petition did not allege the particular agent or employé of the company guilty of the negligence causing such injuries, and did not state the specific act of negligence complained of. In holding that the petition was not obnoxious to the special exceptions addressed to it on account of the omissions stated, the court said: "The facts alleged in the petition justify the inference that the accident described was due to the negligence of the defendant. The evidence developed on the trial showed that this negligence was to be ascribed to the engineer in charge of the defendant's train. This fact, however, the defendant, in framing his petition, could not be supposed...