San Antonio, U. & G. R. Co. v. Dawson

• Decision Date: 30 January 1918
• Docket Number: (No. 5945.)
• Citation: 201 S.W. 247
• Parties: SAN ANTONIO, U. & G. R. CO. v. DAWSON.
• Court: Texas Court of Appeals

201 S.W. 247

SAN ANTONIO, U. & G. R. CO. v. DAWSON.

(No. 5945.)

Court of Civil Appeals of Texas. San Antonio.

January 30, 1918.

On Motion for Rehearing, March 6, 1918.

COPYRIGHT MATERIAL OMITTED

Appeal from District Court, Bexar County; R. B. Minor, Judge.

Action by G. R. Dawson against the San Antonio, Uvalde & Gulf Railroad Company. From a judgment for plaintiff, defendant appeals. Affirmed.

J. A. Germany, of Dallas, and J. C. Hall and Mason Williams, both of San Antonio, for appellant. Perry J. Lewis, Champe G. Carter, Randolph L. Carter, and H. C. Carter, all of San Antonio, for appellee.

SWEARINGEN, J.

This is a suit for damages for personal injuries brought by G. R. Dawson, appellee, against the San Antonio, Uvalde & Gulf Railroad Company. Special issues were submitted to a jury, upon the verdict of which judgment for $30,000 was rendered against appellant. A. R. Bonder and Duval West, receivers of the property of the railroad, were made parties, in whose favor judgment was rendered.

The cause alleged in appellee's first amended original petition was that appellee, while in the employ of the appellant railroad company in the capacity of railroad conductor, and while in the performance of his duties as such conductor, was seriously and permanently injured by the negligence of appellant. The negligence alleged is:

"That while one of said cars was being moved, in the discharge of his duty plaintiff got upon the end thereof in order to make his way to the opposite side of the train; that upon the end of said car, at the point where it was necessary for the plaintiff to have a handhold, there was no handhold, but there was a brake wheel that was used by defendant company's trainmen to sustain themselves in passing over said car; that in passing over said car, as was proper, right, and usual, plaintiff took hold of said brake wheel, in order to sustain himself; that when the plaintiff took hold of said brake wheel the wheel and its attachment gave away, and caused the plaintiff to be thrown headlong in front of the moving car; that plaintiff charges that it was defendant company's duty to use ordinary care to see that said brake wheel and its attachments were properly fastened, but, notwithstanding this duty, said defendant company negligently caused and permitted said brake wheel, the staff thereof, and the bolts and fastenings that should secure the same, to become loose, insecurely and defectively fastened, and by reason of this said brake wheel and its attachments, by reason of defendant's negligence, was insecurely and defectively attached to said car, and by reason of said defects said brake wheel and its attachments gave away with the plaintiff, and this negligence of the defendant company directly caused his injuries, without fault on the plaintiff's part.

"(5) The plaintiff charges that the aforesaid defects in said brake wheel and its attachments could have been discovered by the defendant company by the use of ordinary care, but said defendant company wholly failed to use any care whatever."

In its first amended original answer the appellant assailed the petition by a general demurrer and five special exceptions, all of which were overruled, concerning which action no error is assigned.

Appellant's answer generally denied the allegations of the first amended original petition; and specially denied each of the material allegations; and, further, in defense, averred:

"That on or about the 29th day of November, 1913, at the time the plaintiff is alleged to have been injured, this defendant company was not operating its trains or any of its cars at the place of the alleged accident; that it was not a common carrier of freight for hire through the town of Mathis, Tex., on the date alleged by the plaintiff when he was injured; that the plaintiff was not, at the time he alleged to have been injured an employé of this defendant company; that at the time the injury is alleged to have occurred this defendant company had a written contract with J. E. Franklin, of St. Louis, Mo., under the terms of which written contract the said J. E. Franklin agreed, as an independent contractor, to construct for this defendant railroad company that part of the road upon which the plaintiff is alleged to have been injured; that this defendant alleges, upon information and belief, that at the time of the plaintiff's alleged injury he was employed by the said J. E. Franklin, who was an independent contractor for the San Antonio, Uvalde & Gulf Railroad Company, and at the time the plaintiff is alleged to have been injured he was working for the said J. E. Franklin and not for this defendant company; that at the time of the plaintiff's alleged injury this defendant company had no supervision over the plaintiff, and had no right to control him in his work, neither had it the right to hire or discharge the plaintiff at the time of his alleged injury, but he at said time was under the immediate control and supervision of the said J. E. Franklin, an independent contractor. * * *"

Furthermore, the answer averred J. E. Franklin's residence to be in St. Louis, Mo., but that he could be often found in Bexar county, Tex., and personal service of citation could be had upon him. The answer concluded with the words:

"In the event, however, judgment should be rendered against this defendant company, then it prays that it have judgment over against J. E. Franklin for any amount recovered against it, and for costs and general and special relief."

J. E. Franklin was not a party to the suit.

In a first supplemental petition appellee demurred to the averments of the answer, generally denied them and specially traversed the averments that appellant was not operating the train, did not own the defective car, and was not the master of appellee, as follows:

"The plaintiff says that J. E. Franklin, who is alleged to be an independent contractor at the time the plaintiff was injured, was the president of the San Antonio, Uvalde & Gulf Railroad Company; that the plaintiff was employed by the defendant railroad company as a conductor of its trains at the time and place he was injured, and he had no knowledge whatever of being in the employ of any one save the defendant railroad company; that if the defendant railroad company or its receivers should offer any testimony tending to show that the plaintiff was in the employ of J. E. Franklin, an independent contractor, that said testimony would not be true, and at best said untrue testimony would only tend to show that the said plaintiff was in the joint employ of both the said defendant railroad company and said J. E. Franklin, and, should it be found that the plaintiff was in the joint employ of said defendant railroad company and said J. E. Franklin, such a finding would be no defense to the plaintiff's cause of action, and in event such a finding is made the plaintiff says that, even under such facts, the defendant railroad company would still be liable to this plaintiff; that the defective car mentioned in plaintiff's petition, as well as the other cars and the locomotive in the train being handled, were owned or operated by the defendant company, and it was said defendant company's duty to use ordinary care to maintain said car in a reasonably safe condition to be handled by those whose duty it was to handle it; that, regardless of plaintiff's employment, it was negligence on the part of the said defendant company to permit said car to be in such defective condition, and as aforesaid plaintiff was handling said car in the discharge of his duty, and therefore the said defendant company is liable to the plaintiff for the damages which its negligence directly produced."

Appellant addressed, in a supplemental answer, a general demurrer and two special exceptions to the first supplemental petition, all of which were overruled. Error in overruling the two special exceptions is assigned for our review.

The facts are that on November 29, 1913, appellee was a train conductor, and while in the performance of his duties found it necessary to use a brake wheel on car No. 173 as a handhold; that the brake wheel and its attachments on said car were insecurely fastened, and were in a defective condition as alleged, which constituted negligence, which negligence directly caused the injuries suffered by appellant; that the injuries were serious and permanent, causing appellee great pain and impairing his earning capacity.

In addition to the foregoing facts, the jury found that appellee at the time of his injury was "engaged in doing service for the" appellant railroad company, was in the employ of same, and was injured while engaged in said employment. The jury further found that at the time of the injury the car No. 173 was being moved by the appellant railroad company either in the operation of its railroad or in work incidental to such operation, and that the car No. 173 belonged to the appellant company. There was evidence to sustain these facts found by the jury, and, in deference to the verdict, we find them as facts established by the evidence in this cause.

Assignments numbered 1 and 2 complain of the decree overruling two special exceptions to the first supplemental petition. The first exception is that the allegation that J. E. Franklin was the president of the appellant railroad company was injurious and irrelevant. We think the allegation was relevant, in view of appellant's contention that J. E. Franklin was an independent contractor.

The second exception is that specified allegations in the supplemental petition were mere conclusions and not statements of facts. The criticism is probably correct; but the conclusions were concerning questions that did not affect the verdict or the judgment and, in accordance with rule 62a (149 S. W. x), if error, would not be reversible error. The conclusions complained of were concerning the liability of the railroad company in the event appel...