Southern Kansas Ry. Co. of Texas v. Sage.

• Decision Date: 06 February 1905
• Citation: 84 S.W. 814
• Parties: SOUTHERN KANSAS RY. CO. OF TEXAS v. SAGE.
• Court: Texas Supreme Court

Page 814

84 S.W. 814

SOUTHERN KANSAS RY. CO. OF TEXAS v. SAGE.

Supreme Court of Texas.

February 6, 1905.

Error to Court of Civil Appeals of Second Supreme Judicial District.

Action by B. A. Sage against the Southern Kansas Railway Company of Texas. Judgment for plaintiff was affirmed by the Court of Civil Appeals (80 S. W. 1038), and defendant brings error. Reversed.

H. E. Hoover and J. W. Terry, for plaintiff in error. Veale & Hendricks and C. Coffee, for defendant in error.

BROWN, J.

Sage instituted this suit in the district court of Roberts county to recover of the railroad company for injuries sustained by him in a wreck upon its railroad while he was acting as engineer of a foreign railroad corporation, but operating his engine over the road of the plaintiff in error under its direction and control. The negligence upon which he relied for recovery consisted in a failure to keep its roadbed in reasonably safe condition for operating locomotives and trains thereon. The negligence in this particular was properly and specifically alleged in the petition, but it is unnecessary to state it here, as no question arises upon the pleading. Defendant pleaded the general denial, contributory negligence on the part of Sage, which was alleged to consist in running his train backwards at high rate of speed, and assumed risk, particularly specified in the answer. It was also alleged that, if the plaintiff's injuries were caused by the negligence of any servant or agent of the defendant, it was caused by the negligence of Engineer Zook, who was operating another locomotive attached to the same train, and who was alleged in the answer to be the fellow servant of the plaintiff. Trial was had before a jury, who returned a verdict for $11,500, and the district court entered judgment in accordance therewith, which judgment was by the Court of Civil Appeals affirmed.

The plaintiff in error complains of the following clause of the twelfth paragraph of the court's charge: "Yet if you find from the evidence Engineer Zook was negligent in operating his engine at the place where the train was wrecked, and he at said point did not exercise ordinary care in operating his said engine, and that said negligence and failure to exercise ordinary care caused the wreck of the tracks and the injury to the plaintiff, you will find for the plaintiff." The ground of objection to this charge is that there was neither pleading nor evidence upon which to submit the issue to the jury. It is admitted by counsel for the defendant in error that there was no evidence which tended to show that Zook was negligent on that occasion. It is therefore unnecessary for us to examine the question of pleading, because, in the absence of evidence, the charge was positive error committed on a material issue, and must cause the reversal of the judgment unless the claim of the defendant in error that it was rendered harmless by other portions of the charge can be sustained. Immediately following the clause above copied is this language: "But in this connection, though you may find that the train would not have been wrecked but for the negligence and want of the exercise of ordinary care by Zook, yet before you can find for plaintiff under this paragraph you must find also that it would not have been wrecked if the track had been in a reasonably safe condition, and you must find that it was in bad repair, worn, or defective, and that the defendant company had not exercised ordinary care in keeping and maintaining the track in a reasonably safe state to operate engines and trains over it." It is difficult to understand what the court intended to express by the last clause quoted, for, if the railroad company was responsible on account of the negligence of Zook, then the fact that its roadbed was in good condition certainly...