Rinker v. Galveston-Houston Electric Ry Co.

• Decision Date: 03 March 1915
• Docket Number: (No. 6731.)
• Citation: 176 S.W. 737
• Parties: RINKER v. GALVESTON-HOUSTON ELECTRIC RY. CO. et al.
• Court: Texas Court of Appeals

176 S.W. 737

RINKER v. GALVESTON-HOUSTON ELECTRIC RY. CO. et al.

(No. 6731.)

Court of Civil Appeals of Texas. Galveston.

March 3, 1915.

On Motion for Rehearing, April 14, 1915.

Rehearing Denied April 29, 1915.

Error from District Court, Galveston County; Robert G. Street, Judge.

Action by Dewey Rinker against the Galveston-Houston Electric Railway Company and another and the Stone & Webster Engineering Corporation. There was a judgment for defendants, and plaintiff brings error. Reversed as to the last-named defendant.

Marsene Johnson, Elmo Johnson, and Roy Johnson, all of Galveston, for plaintiff in error. Baker, Botts, Parker & Garwood, Stephen H. Philbin, and C. R. Wharton, all of Houston, for defendants in error.

McMEANS, J.

Dewey Rinker, a minor, by next friend, brought this suit against the Galveston Electric Company, the Galveston-Houston Electric Railway Company, and the Stone & Webster Engineering Corporation to recover damages for personal injuries sustained by him through the alleged negligence of the defendants. Plaintiff alleged that on the 5th day of November, 1911, all of the defendants, acting together and for each other and in pursuit of a joint enterprise, were constructing and building a line of electric railway over and along West Broadway, a public street in the city of Galveston, and had their railway tracks laid along and upon said street to the westernmost limits of the city, and that said line of railway was in a partial state of completion, and that defendants were operating electric motor cars and hand cars, push cars, and construction cars over said tracks in said city to said city limits. He further alleged and proved, in substance, the following facts: That on the date named plaintiff was 13 years of age, and was living near the intersection of Forty-Second street and West Broadway, in said city; that on said date the defendants had left on said West Broadway and upon the railway track of defendants a certain short work car, unguarded and unattended by any servant or employé of the defendants; that said car was easily movable by hand, and could be pushed by children up and down said track, and could be ridden upon and played with by, and was attractive and an allurement to children; that many children resided near the intersection of said streets, and that that portion of the city was thickly populated; that said car had been left upon said track by defendants at the intersection of said streets on many days, at times when it was not in use, unguarded and unattended; that the defendants at said time had laid a double track, or a main track and a switch or siding, which extended westwardly along and upon West Broadway to beyond a crossing at Fifty-Second street, and that many times prior to said date various children had pushed said car up and down and had played with and upon it, on said switch track, in full view of defendants' employés who were engaged in working on the main track, which was laid contiguous to, and parallel with, the switch track; that on said date several children were playing with, around, and upon said car, and were pushing the same back and forth on said track, and that the plaintiff joined said other children at their play, and that, while he and the others were playing with and pushing the car, and while his view forward and downward was obstructed by the car, he fell through a trestle and into a hole under the track which the defendants had failed to cover and guard, and thereby received serious and permanent injury. Other facts proved will be hereinafter stated.

The grounds of negligence alleged as a predicate for recovery are, substantially, as follows: (1) In leaving said car upon its track on said street unguarded and unattended; (2) in failing to cover the hole under its track through which plaintiff fell; (3) in violating an agreement made by defendants with the city of Galveston for the protection of plaintiff and the other inhabitants of the city, which obligated the defendants to cover and make safe for travel and passage all portions of said street used by defendants for their tracks for the operation of their cars, and to not leave openings or pitfalls or uncovered trestles or drains in their tracks in the portions of the streets used by them; (4) that the said acts and omissions of defendants were negligence per se, in that the same were in violation of articles 429 and 430 of title 10, c. 1, of the Revised Ordinances of the City of Galveston, which read as follows:

"That at all curves, and at all street intersections, or crossings, said companies [meaning railway and street railway companies] shall maintain and keep their roadbed and tracks and the approaches thereto for the full width of the street, in good, safe and passable condition for vehicles, by filling between the rails or tracks and the approaches thereto, either with approved ballasting material, plank or pavement.

"That whenever any tracks are laid upon trestle or pile foundation along the streets of the city, the space between said tracks for the entire width shall be filled in, in the same manner as hereinbefore provided, or the whole distance between the rails and the tracks shall be entirely planked over with two by twelve plank, securely spiked down and made safe for traffic over them, and the sides sloped off for a distance of six (6) feet by filling or packing as aforesaid."

He prayed for damages in the sum of $20,000.

The defendants answered by general denial and by plea of contributory negligence. And the defendants Galveston-Houston Electric Railway Company and Galveston Electric Company specially pleaded, and also proved, that the work of constructing the street railway was being performed for the Galveston Electric Company by the defendant Stone & Webster Engineering Corporation as an independent contractor; that the railway was in process of construction; and that the track along the street where plaintiff was injured had not been turned over to the Galveston Electric Railway by said Stone & Webster Engineering Corporation. The Galveston-Houston Electric Railway Company further pleaded and proved that it had nothing to do with the construction of said tracks, and that it did not own the tracks after they were constructed, and that it only operated its cars over said tracks by and under a contract made by it with the Galveston Electric Company, the owner. The defendant Stone & Webster Engineering Corporation pleaded and proved that it was constructing the tracks in question under a contract between itself and the Galveston Electric Company, by which contract it undertook to construct and equip a street railway along Broadway; that the construction of said track was under the entire supervision of the defendant Stone & Webster Engineering Corporation, it being an independent contractor; and that the only supervision that the defendant Galveston Electric Company had over the construction of said tracks was to see that the same were constructed according to the specifications originally agreed upon.

A trial of the case was had before a jury. Upon the conclusion of the testimony the court peremptorily instructed the jury to return a verdict in favor of the defendants Galveston Electric Company and the Galveston-Houston Electric Railway Company, which was done. The case against the defendant Stone & Webster Engineering Corporation was submitted to the jury, and a verdict was returned for said defendant, upon which a judgment in its favor was accordingly entered. From the judgment thus entered the plaintiff, after his motion for a new trial had been overruled, has appealed.

Appellant by his first assignment of error assails the action of the trial court in peremptorily instructing a verdict in favor of the Galveston-Houston Electric Railway Company and the Galveston Electric Company. By his third proposition under this assignment he asserts that:

"Where a city granted a franchise to defendants to lay a line of railway along its public streets, and plaintiff was injured by falling into an excavation not guarded by barriers, planks, or otherwise, defendants are not relieved from liability because it had let the work by a contract under which the contractor had entire charge thereof."

We have already shown that the tracks under construction were the property of the Galveston Electric Company, and were being constructed for said company by the Stone & Webster Engineering Corporation as an independent contractor. The Galveston-Houston Electric Railway Company was not the owner, in whole or in part, of said tracks, and the only interest it had in the tracks or in the construction of them was its right to run its cars upon them after completion, under and by virtue of an agreement made by it with the Galveston Electric Company; therefore in no phase of the case as made by the evidence was the Galveston-Houston Electric Railway Company liable to plaintiff for the damages suffered by him.

We have hereinbefore shown that the Stone & Webster Engineering Corporation, in constructing the tracks, was an independent contractor, and doing the work for the Galveston Electric Company, and that the latter had nothing to do with the supervision of the work further than to see that the same was done agreeably to the specifications of the contract. The work was not inherently dangerous. There is nothing in the evidence to show that the contract stipulated or contemplated that the opening under the track into which plaintiff fell should be made or left there by the contractor in the performance of the work. On the other hand, the evidence clearly indicates that the opening was made or left by the Engineering Corporation during the course of construction, not by reason of any requirement of the contract, but was a detail of the work of construction and purely collateral to the work contracted to be done, and, if wrongful, was entirely the result of the wrongful act of the...