Southern Pac. Co. v. Mauldin

• Decision Date: 12 May 1898
• Citation: 46 S.W. 650
• Parties: SOUTHERN PAC. CO. v. MAULDIN et al.<SMALL><SUP>1</SUP></SMALL>
• Court: Texas Court of Appeals

46 S.W. 650

SOUTHERN PAC. CO. v. MAULDIN et al.¹

Court of Civil Appeals of Texas.

May 12, 1898.

Error from district court, Harris county; William H. Wilson, Judge.

Action by Joseph C. Mauldin against the Southern Pacific Company and another. Judgment for plaintiff against said company, and it brings error. Reversed.

Baker, Botts, Baker & Lovett and A. L. Jackson, for plaintiff in error. Geo. H. Breaker, for defendant in error.

PLEASANTS, J.

The defendant in error, Mauldin, while in the service of the plaintiff in error as locomotive engineer, was seriously injured on the 17th of November, 1894, in the state of Louisiana, at what is known as the "Bayou Mallette Siding," on the railroad between Midland Junction, near the town of Crowley, and the town of Eunice,— a railroad operated by the Southern Pacific Company, but neither owned nor operated by the Texas & New Orleans Railway Company. The cause of the injuries sustained by Mauldin was the derailment of the train of cars of which train he was on the day of the accident the engineer, and this suit was brought by him against both the Southern Pacific and the Texas & New Orleans Railway Companies. The derailment of the train resulted from an open switch. This condition of the switch was not due to negligence on part of the defendant company or its servants, and the petition did not charge the defendants with such negligence. The accident occurred in the night, and the plaintiff charged that the company was negligent in not keeping a signal light at the switch, whereby its condition might be discovered by approaching trains. And another ground on which plaintiff sought to recover compensation for his injuries was the alleged negligence of the Southern Pacific Company in committing him to the care of an incompetent surgeon and physician, by whose ignorance and malpractice in treating plaintiff's wounds his injuries were greatly increased, and rendered incurable, and plaintiff made a cripple for life. Upon trial of the cause the jury were instructed to return a verdict for the Texas & New Orleans Company, and that they could not find for the plaintiff, as against the Southern Pacific Company, for a failure to keep a signal light at the place of accident, for the reason that the plaintiff's own testimony showed that he had been operating a train on that road and by that switch for two months, during all which time the switch was without a signal light. The jury found a verdict for the plaintiff against the Southern Pacific Company, and both plaintiff and defendant moved for a new trial, and, their motions being overruled, both excepted and gave notice of appeal; and afterwards the Southern Pacific Company brought the case to this court by writ of error, and the plaintiff has filed cross assignments of error.

The plaintiff in error, under its fourteenth and fifteenth assignments, complains of the judgment of the court overruling its motion for a new trial because the verdict of the jury is contrary to the evidence, and contrary to the law as given to the jury in the seventh and eighth paragraphs of the charge of the court. The seventh paragraph of the charge is: "The employés of the Southern Pacific Company who put plaintiff under Dr. Joseph's care had no authority to employ any physician, except for the emergency, until the plaintiff could be attended by the company's regular physician, or be forwarded to its hospital; and the Southern Pacific Company cannot be held liable for any act of said physician, besides such attention as he gave plaintiff, on taking charge of him, as preliminary to turning him over to the defendant's regular physicians, and not for that unless the evidence shows that defendant, in employing said Dr. Joseph, if you find it did employ him, did not use, under all the circumstances, such care as a man of ordinary and reasonable care would have used to select a reasonably competent physician." The eighth paragraph is as follows: "If from the evidence you find that any of the agents of defendant employed Dr. Joseph to give medical attention to the plaintiff, and that in so doing they used the same care which a man of ordinary and reasonable care would have used to select a competent physician, then you will find in favor of the defendant, whether the said Joseph was negligent in his treatment of the plaintiff or not; but if you find that said company employed said Joseph, and did not use the care which a man of reasonable and ordinary prudence would have used in employing a physician, and that said physician did not use the skill and care in treating plaintiff which a physician of ordinary skill and care in his profession would have used, in the treatment which he gave to pla...