St. Louis, S. F. & T. Ry. Co. v. Seale

• Decision Date: 15 June 1912
• Parties: ST. LOUIS, S. F. & T. RY. CO. v. SEALE et al.
• Court: Texas Court of Appeals

Page 1099

148 S.W. 1099

ST. LOUIS, S. F. & T. RY. CO. v. SEALE et al.

Court of Civil Appeals of Texas. Dallas.

June 15, 1912.

On Rehearing, June 22, 1912.

Appeal from District Court, Grayson County; B. L. Jones, Judge.

Action by Maude Seale and others against the St. Louis, San Francisco & Texas Railway Company. From a judgment for plaintiffs, defendant appeals. Affirmed.

Andrews, Ball & Streetman, of Ft. Worth, and Head, Smith, Hare & Head, of Sherman, for appellant. Wolfe, Maxey, Wood & Haven, of Sherman, for appellees.

RAINEY, C. J.

Appellees sued the appellant to recover damages for the negligent killing of Memory T. Seale, who was the son of T. H. and J. E. Seale, and the husband of Maude Seale. A trial was had and a verdict and judgment were rendered for plaintiffs, and defendant appeals.

Appellant complains of the action of the court in overruling its second and third special exceptions to plaintiffs' petition, on the ground that said petition did not show that at the time of the accident whether or not defendant was engaged in interstate commerce, and whether or not deceased was engaged in handling said commerce.

The proposition submitted by appellant under said assignment is: "If defendant was engaging in the transportation of interstate commerce, and deceased was in its employ in connection therewith at the time he was injured, the cause of action and defendant's liability would be governed by and founded upon the act of Congress passed April 22, 1908, entitled `An act relating to the liability of common carriers by railroads to their employés in certain cases,' while, if defendant was not so engaged, the rights of the parties would be governed by and founded upon the death and assumption of risk statutes and other laws of the state of Texas. These laws being different, the defendant, by special exception, had the right to require plaintiffs to allege in their petition such facts as would enable it to determine which of these laws applied." We do not think the court erred in overruling the exceptions as stated. The action was brought under the state law and the petition stated a good cause of action, and was not subject to the exceptions presented. This precise question was passed upon by this court in the case of Railway Co. v. Neaves, 127 S. W. 1090, and a writ of error was denied by our Supreme Court; the holding in said case being contrary to appellant's contention.

The evidence shows that at the time Memory T. Seale was killed he was in the employ of appellant in the capacity of yard clerk in the yards in North Sherman, Grayson county, Tex. While in the discharge of his duties as such clerk he was struck and killed by appellant's servants in the negligent operation of an engine. The court did not err in charging the jury that deceased had just gone to work as yard clerk for appellant. The evidence shows he was killed at night when he had been at work for the first time in that capacity about forty minutes. We think the evidence such that the issue of discovered peril was raised, and the court did not err in charging on that issue.

The trial court refused a special charge requested by appellant, of which it complains, said charge reading: "The plaintiffs in this case are not shown to be the legal representatives of the deceased, M. T. Seale, and are not entitled to prosecute this suit, nor to recover in any sum, and you will therefore return your verdict in favor of defendant." The proposition submitted thereunder is: "The deceased, at the time of receiving the injuries which caused his death, was engaged in interstate commerce, and the cause of action, if any, arising on account of his death is based upon, and controlled by, the act of Congress approved April 22, 1908, entitled `An act relating to the liability of common carriers by railroads to their employés in certain cases,' commonly called the `Federal Employer's Liability Act,' and not the Texas death statute, which was superseded by the said act of Congress as to causes of action coming within its terms, and, since the plaintiffs...