Missouri Pac. Ry. Co. v. Ivey

• Citation: 9 S.W. 346
• Parties: MISSOURI PAC. RY. CO. <I>v.</I> IVEY <I>et al.</I>
• Decision Date: 18 October 1888
• Court: Texas Supreme Court

9 S.W. 346

MISSOURI PAC. RY. CO.

v. IVEY et al.

Supreme Court of Texas.

October 18, 1888.

Commissioners' decision. Appeal from district court, Bell county; A. W. BLACKBURN, Judge.

The ninth cross-interrogatory was as follows: "Could Ivey, by any act or effort on his part, have done anything that would have prevented the collision of the trains?" The answer of witness Tarpley to said ninth interrogatory was as follows: "He could not have prevented the collision, but he had plenty of time to get out of the way of it. When I left the caboose, I got some torpedoes, and told him I was going back to stop the second section of the train." To the reading of all of said answer but the words, "he could not have prevented the collision," plaintiffs objected, because the same was not responsive to the interrogatory; which objection was sustained by the court, and the portion of the answer objected to was excluded, and not permitted to be read.

R. C. Foster and A. E. Wilkinson, for appellant. Harris & Saunders, for appellees.

COLLARD, J.

It is insisted by the appellant, the Missouri Pacific Railway Company, that Ivey, the deceased, at the time of the collision of trains causing his death, was an employe of the company, and that, such being the case, the company would not be liable to his heirs if his death was the result of negligence on the part of his fellow-servants. This point is made in several different assignments, and is ingeniously presented by counsel for the company. One J. P. Higgins shipped cattle on defendant's road from Fort Worth to the stock-yards in East St. Louis, under a contract. There is an agreement indorsed on the back of the contract, and signed by Ivey, as follows: "We, the undersigned persons in charge of the live-stock mentioned in the within contract, in consideration of the free pass granted us by the Missouri Pacific Railway Company, and of the other covenants and agreements contained in said contract, including the rules and regulations at the head thereof and those printed on the back thereof, all of which, for the consideration aforesaid, are accepted by us, and made a part of this our contract, and all the terms and conditions of which we hereby agree to observe and be severally bound by, do hereby expressly agree that during the time we are in charge of said stock, and while we are on our return passage, we shall be deemed employes of said company for the purposes in said contract stated; and that we do agree to assume, and do hereby assume, all risks incident to such employment; and that said company shall in no case be liable to us for any injury or damages sustained by us during such time, for which it would not be liable to its regular employes."

The first question presented to us by the record then is, was Ivey in fact an employe of the company at the time of his death? The regulations referred to in the foregoing agreement have this provision: "For the purposes of taking care of the stock, the owner or the men in charge * * * will be passed on the train with it, and all persons thus passed are at their own risk of any personal danger whatever, and will sign an agreement to that effect, indorsed on the contract." Looking at the contract itself, we see that it states that the rates charged for the shipping of the cattle are declared to be lower than the usual rates, and in consideration thereof there are many stipulations of the shipper releasing the company from damages for losses and injury to the stock, and limiting its liability as a common carrier. It also contains substantially the following stipulation by the owner: "Third. At his own risk and expense he is to take care of, feed, water, and attend to the stock, while in the stock-yards awaiting shipment, while being loaded, transported, unloaded, and reloaded. He is to unload and reload at feeding and transfer points and at destination, and is to hold the company harmless for any and all loss and damages to the stock while so in his charge, and cared for by him or his agents or employes." "Fifth. When the company shall furnish, for the accommodation of the owner, laborers to assist in loading or unloading the stock, they shall be subject to the owner's orders, and deemed his employes while so engaged, for whose acts he agrees to hold the company harmless." "Eighth. The contract forbids the holder or any other person to ride on any train except for the purposes and in accordance with the rules and printed instructions printed on the back of it, all of which are accepted as a part of it." "Tenth. The person in charge of the stock shall remain in the caboose while the train is in motion," etc. It is impossible for us to say from the stipulations in the foregoing contract and regulations that Ivey was in the employ of the company. It is clear to us that the contract and regulations contemplated he was to be in the employ of the owner and shipper. He went along in charge of the cattle, to care for them, feed and water them, load and unload them; all of which the owner, by the terms of the contract, was to do at his own expense and risk. So careful is the contract to include every stipulation that would relieve the company from responsibility for the cattle while in transit, that a clause is inserted making laborers furnished by the company to aid in attending to the stock the employes of the shipper, and subject to his orders. We do not intend to say the company should be acquitted from its ordinary responsibility as common carriers of the stock by the various provisions of the contract to that effect; but we do infer from its terms and requirements that the person sent in charge of the stock had charge of them for the owner, under his employ as his agent and representative. It seems to us it could not be seriously contended that he was in the employ of the company. He started from Lampasas to attend to the cattle on the way. They were first shipped on the Gulf, Colorado & Sante Fe Railway to Fort Worth, and there reshipped on defendant's road. Ivey signed the agreement indorsed on the back of the contract as the person provided for in the contract or regulations who should attend the cattle in transport for the owner. All the facts go to show that he was in the employ of the owner. It would be absurd to suppose otherwise. By the agreement indorsed on the back of the contract, he agrees that he is the employe of the company, but that is evidently a fiction to provide for the release of the company from damages for personal injuries occasioned by the negligence of its servants. It is a pretense, a subterfuge, upon which to predicate the discharge of the company for damages in a plausible form. The true relations of the parties cannot be changed by such an agreement. It states a fact which is untrue; the agreement that it is true does not make it so. It amounts to this: knowing that a contract would be of doubtful validity that absolved the company, or limited its liability as a common carrier of passengers,...