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

• Decision Date: 22 December 1915
• Docket Number: (No. 5566.)
• Citation: 181 S.W. 541
• Parties: SAN ANTONIO & A. P. RY. CO. et al. v. McCAMMON.
• Court: Texas Court of Appeals

181 S.W. 541

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

(No. 5566.)

Court of Civil Appeals of Texas. San Antonio.

December 22, 1915.

Rehearing Denied January 10, 1916.

Appeal from District Court, San Patricio County; F. G. Chambliss, Judge.

Action by M. H. McCammon against the San Antonio & Aransas Pass Railway Company and others. Judgment for plaintiff, and defendants appeal. Reversed, and cause remanded.

Claude Pollard, of Kingsville, and Kleberg & Stayton and David M. Picton, Jr., all of Corpus Christi, for appellants. J. C. Houts, of Sinton, and C. A. Davies, of San Antonio, for appellee.

FLY, C. J.

Appellee sued the San Antonio & Aransas Pass Railway Company, the St Louis, Brownsville & Mexico Railway Company, and Frank Andrews, receiver for the railroad company last named, for damages in the sum of $3,453 alleged to have been inflicted upon him by a failure on the part of appellants to provide proper and necessary sluices and culverts in their roadbeds for the drainage of surface water that accumulated between the two roadbeds where they cross each other near Sinton, Tex. A writ of mandatory injunction was also sought to require the construction of necessary sluices and culverts. The damage alleged was to the crops of appellee in the years 1913 and 1914. The cause was submitted to the jury on special issues, and upon the answers of the jury a judgment was rendered against the first-named railway company for $546.30, and against the other railway company and the receiver for the same sum. The mandatory injunction was refused.

In the last question submitted to the jury they were required to state the amount found against each of the defendants, and the answer was a finding against each of the railway companies for the sum of $546; no mention being made of the receiver. The verdict was by reasonable implication in favor of the receiver, and judgment should not have been rendered against him. The verdict was plain, and capable of but one construction, and that was that the jury did not believe the receiver was liable for the damages. Railway v. James, 73 Tex. 12, 10 S. W. 744, 15 Am. St. Rep. 743; Kinkler v. Junica, 84 Tex. 116, 19 S. W. 359. The first assignment of error must be maintained.

If damages properly assessable against the receiver were included in the verdict against the railway company, whose estate he is administering, which is necessarily the case, then there was error in the verdict in the full sum of the amount of damages that should have been rendered against the receiver, if against any one. This error might be corrected by subtracting that amount from the $546.30 found against the railway company, if that sum were definitely known. We do not think the record discloses a sufficient basis for such adjustment. We cannot by the calculating as suggested arrive at what the jury should have rendered against the receiver. They evidently labored under the belief that the receiver should pay nothing, and we cannot create a new verdict for them. The receiver was appointed in September, 1913, and this court is unable to separate the amount of damages for March, 1913, from those occurring after the receiver was appointed. The second, third, and fourth assignments of error are sustained.

The fifth assignment of error is overruled. The effect of the charge of the court preceding the submission of special issues as to the failure of appellants to erect and maintain proper sluices or culverts amounted to a charge that the obligation to provide the necessary culverts or sluices was absolute, without reference to the exercise of ordinary care. The...