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

• Decision Date: 24 January 1894
• Citation: 24 S.W. 839
• Court: Texas Court of Appeals
• Parties: SAN ANTONIO & A. P. RY. CO. et al. v. ADAMS.<SMALL><SUP>1</SUP></SMALL>

24 S.W. 839

SAN ANTONIO & A. P. RY. CO. et al. v. ADAMS.¹

Court of Civil Appeals of Texas.

January 24, 1894.

Appeal from district court, Caldwell county; H. Teichmueller, Judge.

Action by E. T. Adams against the San Antonio & Aransas Pass Railway Company and others. From a judgment for plaintiff, defendants appeal. Reversed.

The other facts fully appear in the following statement by COLLARD, J.:

This suit was brought by the appellee, E. T. Adams, against the San Antonio & Aransas Pass Railway Company, for alleged injuries to him, occurring on the 2d day of January, 1890, making B. F. Yoakum and J. S. McNamara, receivers of the road, parties defendant. It was alleged by the plaintiff that the company was operating the road at the time of his injuries. Plaintiff's cause of action, as alleged, is as follows: On the date of his injuries he was express messenger in the employ of the Pacific Express Company, whose express matter was being carried by defendant between Yoakum and Lockhart on its train. Plaintiff was in charge of the express business between the two points, and, by some contract between the two companies, the defendant company was bound to carry plaintiff as messenger, and the goods in his charge as such. On the way from Yoakum to Lockhart, plaintiff riding in the baggage car in the rear of the tender on the passenger train, which was exclusively under the control of defendant, about one mile from Shiner, through the negligence of defendant, while crossing a bridge over a stream, the engine and the car in which plaintiff was traveling fell through the bridge into the stream. In the car upon which plaintiff was riding there was a large amount of baggage, — trunks, valises, etc., — and, when the car fell through, plaintiff was hurled on the floor of the car, and the baggage hurled against him, and, in the language of the petition, "he was pinned down to the floor of the car, and submerged in the water, and thereby wounded, bruised, injured, and hurt permanently, greatly frightened and alarmed, and caused great physical pain and discomfort and suffering, and caused great mental pain, agony, and fear, and permanently disabled, from that time on, from doing any but the very lightest labor, and has continued from that time on and does now suffer great physical and mental pain and agony from the said injury so received by him, to his actual damage in the sum of fifteen thousand dollars." Plaintiff also set up gross negligence on the part of the company and asked for exemplary damages, which were abandoned before trial. Defendants, by amended answer, filed a general demurrer, special exceptions and general denial, and specially answered that plaintiff was on the train as agent of the Pacific Express Company, with whom defendants had a contract to carry plaintiff on the cars, by which agreement the express company was to save harmless the defendants from any and all damages growing out of the transporting of their express business and of its agent, of which plaintiff had notice, and to which he had assented at the time he entered upon his employment as express agent; and that, if he was injured, as stated, and if defendants are held liable, the express company, under its contract, was "alone liable," and is a proper and necessary party herein. The answer refers to the contract as the same attached to the answer of the express company. Defendants further answered that, at the time of the alleged injuries, plaintiff was in their employ as a baggage master, and, if he was injured, it was by the negligence of defendants' employes, fellow servants of plaintiff, and defendants would not be liable. Defendants further answered that plaintiff was cognizant of the unsafe condition of the bridge, and that by his acts in continuing to travel on the cars over the bridge after he knew its condition he assumed the risk, and contributed to his own injury, whereby defendants are not liable. Defendants pray for judgment, and, in case they should be held liable, then for judgment over against the express company. The express company, upon being made party defendant, filed exceptions to the answer of defendants, claiming that it was improperly made a party, and filed and attached the contract between the two companies, and denied any liability for the alleged injuries of plaintiff. The contract contained mutual promises by the parties, and, among other things, the railway company agreed, upon proper application, to furnish free transportation over its lines to such officers and agents of the express company as might be necessary to supervise its business. There is a provision in the contract that, where one man is employed to handle both express and baggage matter, the express company should pay two-thirds, and the railway company one-third, of his salary. The clause in the contract relied upon by defendant railway company as binding the express company to hold the former harmless from damage for injury to plaintiff is as follows: "B. Said express company assumes all risk of loss or damage arising out of, or resulting from, its operations under this agreement, and shall hold harmless the said railway company against the same." The court sustained exceptions of the express company to the answer of the other defendants making it a party defendant, and dismissed it from the suit. The general demurrer and exceptions of defendants to the plaintiff's petition were overruled. There was a verdict and judgment for plaintiff against the defendant railway company for $7,000. The damages being found to result from injuries to plaintiff while the railroad was operated by the company, after which it passed into the hands of the receivers, Yoakum and McNamara still being receivers, it was ordered that the judgment be certified to the court (state district court) in which the receivership is pending for classification and allowance.

Storey & Storey, for appellants. Dennan & Franklin and W. O. Huchison, for appellee.

COLLARD, J., (after stating the facts.)

1. Appellants ask us to reverse the judgment because there was error in overruling the general demurrer to plaintiff's petition. From the proposition made under this assignment, the point seems to be that the plaintiff sought to make the railway company and the receivers jointly liable. The receivers are sued, or at least joined as defendants in the action, but the wrong complained of is charged to the defendant company when the company was operating the road. It is not stated in the petition when the road went into the hands of the receivers, but it could not have been until after the acts complained of, which are alleged to have been at the time when the company was operating the road. The...