Missouri Pac. Ry. Co. v. White

• Citation: 15 S.W. 808
• Parties: MISSOURI PAC. RY. CO. v. WHITE.
• Decision Date: 10 March 1891
• Court: Supreme Court of Texas

15 S.W. 808

MISSOURI PAC. RY. CO. v. WHITE.

Supreme Court of Texas.

March 10, 1891.

Commissioners' decision. Appeal from district court, Grayson county.

R. C. Foster and A. E. Wilkinson, for appellant. C. B. Randell and W. W. Wilkins, for appellee.

COLLARD, J.

This suit was brought in the district court of Grayson county by the appellee against the appellant for damages for personal injuries sustained by plaintiff's wife on the 16th November, 1885, through the negligence of the defendant. Plaintiff was foreman of a convict gang employed on defendant's road, and kept on a work train which was moved about on the road as needed. Plaintiff and his wife lived together on the train in a car furnished by the company to plaintiff for that purpose, the wife not being in any sense an employe of the company. "The injuries were alleged to have been caused," as correctly stated in appellant's brief, "by a sudden jar to the car by collision with a car forming a part of the convict train, and used to supply it with water, which, after being taken off to be filled with water, defendant's employes were setting in upon the spur track occupied by the convict train, against which it was permitted to strike with such force as to suddenly move plaintiff's car, throwing his wife down, and inflicting injuries resulting in her miscarriage." The jar threw her over on a chair, producing the miscarriage, as alleged, and injuring her permanently, as is also alleged. Defendant pleaded the general issue and contributory negligence. On petition of defendant the case was moved to the United States circuit court for the northern district of Texas, at Waco, and subsequently remanded to the state court by agreement of parties, where it was tried, resulting in a verdict and judgment for plaintiff for $5,000. Defendant appealed, and assigns error.

The first assigned error is that the court erred in overruling defendant's motion to suppress depositions of plaintiff's witnesses C. E. White, Carrie White, W. T. Brown, Jake B. Pfifer, and Sam Sexhour. Before the cause was moved from the state court to the federal court plaintiff filed interrogatories to the witnesses named, and had the precept served upon defendant's attorneys of record. The cause was moved to the federal court on the fourth day afterwards. Subsequent to this, while the cause was pending in the United States court, plaintiff had issued commissions to take the answers of the witnesses in form as prescribed by our state law, no cross-interrogatories having been filed. The depositions (except of one witness) were taken, and all of them, except those of Brown, were returned into the United States court, Brown's deposition being returned into the state court after the cause was remanded. Defendant's motion in the state court to suppress the depositions was overruled. The contention of the appellant is that, the state procedure being followed in the taking of depositions and issuing commissions, the cause pending in the United States court, the same was void and illegal, and deprived it of notice of time and place of taking the answers. The rules adopted in the United States circuit court for the northern district of Texas, which district includes Waco, adopted at the April term, 1880, provide that "commissions to take examinations of witnesses and depositions and all testimony, in any cause, may be taken in the manner and subject to the regulations, so far as the same are applicable, mutatis mutandis, prescribed by the laws of the state of Texas." This rule clearly authorizes the taking of depositions in the United States courts in the northern district of Texas, according to the state laws; but if there were any doubt about it the decision of Judge McCORMICK in Warren v. Younger, 18 Fed. Rep. 859, would settle it in favor of the rule. When the right exists to take depositions in common-law actions in the United States courts, the parties may elect to follow the state or United States laws in taking. McLennan v. Railroad Co., 22 Fed. Rep. 198. Justice MILLER holds the same view. Flint v. Board, 5 Dill. 481. But see, contra, Sage v. Tanszky, 6 Cent. Law J. 7; U. S. v. Pings, 4 Fed. Rep. 714. The assignment of error cannot be sustained. Appellant contends that the court erred in refusing the following charge requested by it: "If you believe from the evidence that plaintiff, C. E. White, was foreman of defendant's convict train, and that the water-car was one of the cars composing such train, and that he [plaintiff] was in charge thereof, he would be charged with notice of such defects rendering the same unfit for use as might with reasonable diligence on his part have been discovered; and if, under such circumstances, such defects existed, and plaintiff continued to use such car without complaint, or notifying defendant thereof, he would not be entitled to recover for any injury occasioned thereby, and you should find for defendant." The instruction given by the court in the general charge upon this subject is as follows: "If you believe, from the evidence, that the brakes on the car were not defective as alleged in plaintiff's petition, but were in a reasonably safe condition, and suitable to perform the work required of them, or, if defective, such defects were known to plaintiff, or would have been known to him by the use of reasonable diligence on his part, you will find for the defendant; and you are instructed that if the car, with such defective brakes, was in charge of the plaintiff, and it was a part of his duties to look after the condition of the same, he would be chargeable with notice of any defects therein which a diligent and close inspection on his part would detect; but if such car was not in charge of plaintiff, and it was not a part of his duties to look after its condition, he would not be required to guard against injury from any defect therein not actually known to him, he having the right in such case to act upon the presumption that the defendant will keep its cars in good condition."

It was in proof that plaintiff had charge of the convict train and all the property of defendant at the convict camp, but that he had nothing to do with the movement of the cars or their operation. When he needed water he would inform the proper officer of the company, and he would move the water-car out, have the tanks filled, and the car set back with the convict train. An employe of defendant testified that it was the duty of the plaintiff to report if there was anything out of order with the brakes. Plaintiff testified that he had no control of the water-car or its appliances; that he had never inspected it, or had occasion to do so. Before considering the care further, it might be proper to note that the case was tried below, and is presented here, upon the assumption that, in a suit for personal injuries to the wife, the husband's negligence would be imputed to her, and that if he knew of the defects in the brakes, or ought to have known, the fact would affect his wife's right to recover to the same extent that it would affect his right had he been injured. He was an employe of the company; she was not. The authorities seem to hold generally that the negligence of the husband would be imputed to the wife. Yahn v. City of Ottumwa, 60 Iowa, 433, 15 N. W. Rep. 257; Carlisle v. Sheldon, 38 Vt. 440; Huntoon v. Trumbull, 2 McCrary, 315, 12 Fed. Rep. 844; Peck v. Railroad Co., 50 Conn. 380; Railroad Co. v. Greenlee, 62 Tex. 352; Beach, Contrib. Neg. pp. 113, 114; Shear. & R. Neg. p. 58. In Missouri a different doctrine obtains because of a statute that makes the proceeds of such a recovery the wife's separate estate. Flori v. St. Louis, 3 Mo. App. 231. With us the proceeds of a recovery become community property, the recovery is as much for the husband as the wife, and for that reason his negligence would affect the right of recovery. Then we conclude that the case was correctly tried upon this theory.

We will now consider the above assignment of error. We think the charge of the court was as favorable to defendant, under the facts, as it ought to have been. It directed the jury to find for defendant if the defects were known to White, or ought to have been known to him by the use of reasonable diligence. Appellant's objection to the court's charge is that it did not tell the jury, as the requested charge did, that if plaintiff was merely in charge of the train and water-car he would be required to use reasonable diligence to ascertain the alleged defects, but told them he would be chargeable with ascertainable facts if he had charge of the train, and if it was a part of his duty to look after the condition of the same. The distinction made by the court was correct, and followed the evidence. White was in charge of the train as a work train, and as property of the defendant, but it was not shown that such control made it his duty to inspect the same. He had nothing to do with the operation of the train or its movement. There was barely enough in testimony even to justify the submission of the question as it was done by the court, — a mere inference that he was required to inspect, from the evidence that he was required to report defects in the brakes. The jury might have drawn such an inference if they had credited the statement of the employe who testified to the duty of making such report. It was proper to submit the question as to whether plaintiff was required to inspect the train, and look out for defects, without which he would not be chargeable with what he might have known. It was the province of the jury, weighing the evidence and judging the credibility of the witnesses, to decide whether a part of his duty was to inspect the train or any of its machinery. This very question was left to the jury, by the court's general charge, and it would have been improper to have assumed, as was done in defendant's requested charge, that his being in charge of the train...