San Antonio & A. P. Ry. Co. v. Bowles

• Decision Date: 14 November 1895
• Parties: SAN ANTONIO & A. P. RY. CO. et al. v. BOWLES et al.
• Court: Texas Supreme Court

32 S.W. 880

SAN ANTONIO & A. P. RY. CO. et al. v. BOWLES et al.

Supreme Court of Texas.

November 14, 1895.

Error to court of civil appeals of Third supreme judicial district.

Action by Georgia A. Bowles and another against the San Antonio & Aransas Pass Railway Company and another. From a judgment of the court of civil appeals (30 S. W. 89, 727) modifying a judgment for plaintiffs, defendants bring error. Affirmed.

John T. Duncan, for plaintiff in error San Antonio & A. P. Ry. Co. Frank Andrews and O. T. Holt, for plaintiff in error Houston & T. C. R. Co. H. M. Garwood, for defendants in error.

BROWN, J.

Georgia A. Bowles and her child, John Claude Bowles, sued the San Antonio & Aransas Pass Railway Company and the Houston & Texas Central Railroad Company for damages on account of the death of J. W. Bowles, the husband of Georgia, and father of John Claude, Bowles, which death was alleged to have been caused by the joint negligence of the two railway companies. The San Antonio & Aransas Pass Railway Company pleaded a general denial, contributory negligence on the part of J. W. Bowles, and that the engineer of its train and the deceased were fellow servants. The plaintiffs' petition set up the fact that the Houston & Texas Central Railway was placed in the hands of a receiver, Charles Dillingham, who continued to operate the same until he was discharged by order of the federal court on the 19th day of December, 1892, and in April, 1893, he delivered the said railroad to the defendant the Houston & Texas Central Railroad Company; that, during the time the said Dillingham operated the said road, he made improvements thereon, which were permanent and valuable, to the amount of $4,000,000, paid for out of the earnings of the said road while in his hands. The Houston & Texas Central Railroad Company answered by general demurrer and general denial, and specially pleaded, in substance, that the Houston & Texas Central Railroad was placed in the hands of a receiver by the United States circuit court, and Charles Dillingham was appointed receiver of the property in May, 1886; that he had charge and control of the said property until 1893; that about May 4, 1888, the United States circuit court ordered the property in the hands of the said receiver to be sold, which was done September 8, 1888, when it was purchased by F. P. Olcott; the sale was confirmed December 4, 1888, and a deed ordered to be made to the purchaser, Olcott; that from that date to April, 1893, Charles Dillingham continued in possession and management of the property as receiver, under orders of the United States circuit court, at which last date he was finally discharged. On the 18th day of January, 1889, a deed to the property was made to Olcott, the purchaser at the said sale; and about the 1st day of August, 1889, the Houston & Texas Central Railroad Company was organized under the laws of the state of Texas, said Olcott being one of the charter members of said company, and then conveyed the property to said railroad company. By order of the circuit court it was provided that the purchaser should take and hold the said railroad and appurtenances free from all claims and demands growing out of said receivership, except such as before that time had been established by said circuit court, or such as might thereafter be established by said court on interventions to be filed before the 1st day of October, 1893; that all claims not so filed prior to the 1st day of October, 1893, should be barred, and should not be a charge upon the said railway and property; that the plaintiffs had notice of the order, and failed to intervene and prosecute their claims, as required by that order. Georgia A. Bowles was the wife of J. W. Bowles, deceased, and John Claude Bowles was their only child. On the 30th day of September, 1893, J. W. Bowles was in the employ of the San Antonio & Aransas Pass Railway Company, as brakeman, on an engine pulling a train on the said road, when he was killed at Giddings, Tex., by a collision between the train he was on and a train on the Houston & Texas Central Railroad, at the crossing or intersection of the said roads. The trains upon the different roads approached the crossing about the same time, and the engineer on each train failed to bring his train to a full stop, as required by law, by which the collision was caused, and the death of Bowles resulted therefrom. A trial was had before a jury, and a verdict rendered for $10,000, $5,000 to be paid by each of the railroad companies, upon which verdict the district court entered judgment against both defendants jointly for $10,000. This judgment was reversed and reformed by the court of civil appeals, rendering judgment against each of the plaintiffs in error for $5,000, and for all costs.

Separate applications were made for writs of error by the plaintiffs in error, upon the following grounds: The San Antonio & Aransas Pass Railway Company assigns the following errors in this court: (1) That the district court permitted the counsel, in the course of argument, to use language which was calculated to inflame the minds of the jury and prejudice the rights of the railway company; (2) that the engineer of the train and J. W. Bowles, the brakeman, who was killed, were fellow servants; (3) that the court of civil appeals erred in taxing the costs against the defendant the San Antonio & Aransas Pass Railway Company. The Houston & Texas Central Railroad Company presents the following grounds of error: (1) That the district court erred in overruling its application for a continuance; (2) the district court erred in admitting evidence as to the grade of the road of the San Antonio & Aransas Pass Railroad, because there was no allegation of such fact; (3) the same ground as to language used by counsel in argument as that assigned by the other plaintiff in error; (4) that the district court erred in refusing charges requested by it upon the question of its engineer's failing to bring his train to a full stop; (5) in...