Missouri Pac. Ry. Co. v. Hill

• Decision Date: 16 October 1888
• Parties: MISSOURI PAC. RY. CO. <I>et al.</I> <I>v.</I> HILL <I>et al.</I>
• Court: Texas Supreme Court

9 S.W. 351

MISSOURI PAC. RY. CO. et al.v.

HILL et al.

Supreme Court of Texas.

October 16, 1888.

Appeal from district court, Red River county; D. H. SCOTT, Judge.

R. C. Foster and A. C. Wilkinson, for appellants. Sims & Wright, for appellees.

WALKER, J.

This is an appeal from a judgment in favor of Elizabeth Hill, widow of David Hill, and their five minor children, against appellants for causing the death of said David Hill by the gross negligence of the servants of appellants. The petition alleges the death October 29, 1885, at the railroad crossing of a public county road, one and a half miles east of Clarksville, by being thrown from his loaded wagon through the alleged defects in the crossing and from fright of his team of horses at a pile of cross-ties on the west and a hand car on the east side of the public road, near the railroad track, and so close together that there was barely room for the passage of vehicles. The obstacles were on the right of way both of the railway and of the county road. Defendants pleaded not guilty, and contributory negligence. The testimony failed to prove the allegations as to the actual crossing as out of repair. The charge of the court was directed to the case as made by the presence of the obstacles and their effect. The deceased fell from a bale of cotton in the wagon on which he was riding, from 75 to 150 yards from the crossing, his horses being in a gallop when he fell. Upon such testimony it is held that there was no material variance between the allegations and proof. Plaintiffs only failed in proof of some of their allegations. The second assignment of errors attacks the charge of the court and the refusal of certain charges "holding defendants liable if the death was caused by the negligence of defendants' subordinate employes, though the negligence was not that of the defendants themselves, and though the negligence of the employes was not gross but ordinary negligence only." The parts of the charge of the court upon negligence of the defendants are here given: "In order to find for the plaintiffs * * * you must be satisfied by preponderance in the evidence that all of the following propositions are true: * * * (2) That David Hill is dead, and that his death was caused by the negligence of the defendants in placing a pile of railroad ties or a hand car or both of said objects so near to the public county road as to frighten horses and teams of persons traveling on such road, and that the same was calculated to have that effect. * * * (5) That a person of common prudence and caution in a like business as defendants, would not under ordinary circumstances have left the ties or hand car in the situation that the evidence in this case may satisfy you they or either of them was left." The defendants asked the charges following: (3) "Though the jury believe that the act of leaving the hand car by the crossing was an act of ordinary negligence as elsewhere defined, yet if it was placed there by the section men or fencing gang or their foreman, neither of said defendants can be liable for such an act by employes of that grade. As there is no evidence connecting either of the corporations defendant themselves with such act, they cannot be held responsible for the result of such negligence on the part of their employes. (7) The defendants are not chargeable with any act of ordinary negligence by or on the part of their employes or servants causing the death of the deceased. To make them liable, the act or omission alleged to have caused the death must have been willful or grossly negligent." These were refused.

The statute under which the suit was brought provides for an action "when the death of any person is caused by the negligence or carelessness of the proprietor, owner, charterer, or hirer of any railroad, steam-boat, or stage coach, or other vehicles for the conveyance of goods or passengers, or by the unfitness or gross negligence or carelessness of their servants or agents." Rev. St. art. 2899. In the petition of plaintiffs the acts of negligence causing the death are alleged to have been done "through and by the unfitness, gross negligence, and carelessness of their [defendants'] agents, servants, employes, hands," etc. The evidence showed that deceased was killed by falling from his wagon at a point 75 to 150 yards from the place he...