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

• Decision Date: 16 March 1927
• Docket Number: (No. 815-4480.)
• Citation: 292 S.W. 182
• Parties: ST. LOUIS, S. F. & T. RY. CO. v. RUTLAND.
• Court: Texas Supreme Court

292 S.W. 182

ST. LOUIS, S. F. & T. RY. CO. v. RUTLAND.

(No. 815-4480.)

Commission of Appeals of Texas, Section A.

March 16, 1927.

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

Action by Rosalie Rutland, administratrix of the estate of Sam J. Rutland, deceased, against the St. Louis, San Francisco & Texas Railway Company and another. Judgment in favor of the named defendant was reversed by the Court of Civil Appeals and the cause remanded (274 S. W. 284), and the named defendant brings error. Judgment of Court of Civil Appeals affirmed.

Freeman, McReynolds & Hay, of Sherman, and Goree, Odell & Allen, of Fort Worth, for plaintiff in error.

Ocie Speer, of Austin, and C. B. Randell, of Sherman, for defendant in error.

Statement of the Case.

NICKELS, J.

Rosalie Rutland, as administratrix of the estate of Sam J. Rutland (her deceased husband), brought suit against plaintiff in error and St. Louis Southwestern Railway Company of Texas for damages "for the death of deceased by wrongful act of the defendants, and each of them," etc.

Paragraph 3 of the original petition reads:

"That on, to wit, the 2d day of October, A. D. 1922, deceased was duly in the employment of the defendant St. Louis Southwestern Railway Company of Texas, in Sherman, Grayson county, Tex., and was working in said employment on a track owned by the St. Louis Southwestern Railway Company of Texas and used by each and both of the defendants, jointly and severally, and was engaged in inspecting and making a slight repair, in accordance with the duties of his employment, of a car or cars standing on said track in Sherman, Grayson county, Tex., and while so engaged, in his proper place, without fault on his part, the defendants, and each of them, by their agents and servants, jointly and severally, caused and permitted a certain cut of cars to be suddenly moved and thrown and propelled along said track and against the car and cars with and about which the deceased was engaged in the performance of his duties, and caused the same to strike and run over him in such manner that with other serious injuries, contusions, and lacerations his head was severed from his body, causing instant death."

In paragraph 4 of that petition six negligent acts and omissions are separately charged against St. Louis Southwestern Railway Company. "And each and all of same," it is said, "proximately caused and contributed to the injuries and consequent death of deceased, and deceased would not have been injured but for same."

Paragraph 5 is made up of the specific charges against plaintiff in error and reads as follows:

"Plaintiff further avers that at the time and place, aforesaid, deceased was engaged in his work, and the defendant, the St. Louis, San Francisco & Texas Railway Company, and its agents, servants, and employees, knowing the danger to any one who might be working on or about cars on said transfer track and upon said track, negligently switched, shoved, propelled, and kicked certain cars, about two in number, together upon and onto said transfer track with great force and violence, with no person on said cars to control their movements, or without any device coupling automatically of doing so; and, knowing there was no derail or block, or other thing, or condition to check, stop, or control said cars across public streets, to wit, the streets of Jones and Cherry in the city of Sherman, Grayson county, Tex., upon and against the cars at, on, and under which deceased was engaged at his work in the discharge of his said duties, striking, bruising, lacerating, contusing, and running over deceased, causing his injuries and death, as aforesaid; and deceased would not have been injured and would not have died but for said negligence and said causes."

In paragraph 6 it is alleged:

"Plaintiff alleges that each and every act of each of the defendants, and each of the servants, agents, and employees, of each of the defendants hereinbefore complained of, were, and the same did, constitute, gross negligence and the want of ordinary care; and each and all was, and were, a proximate and direct cause of the said injuries and death of deceased, as aforesaid; and deceased would not have been injured and would not have died but for same."

And in paragraph 7 it is said:

"Plaintiff further shows to the court that both and each of the defendants, and the agents and servants of both and each of them, engaged in the operation and the movement of the cars hereinbefore mentioned, and the government of said track and yards and the business of the defendants and each of them, then and there knew, and must necessarily have known, the position of deceased, and the place where he was working, and realized the danger and hazard to him arising therefrom and from the movement of said cars; and, knowing the same, negligently failed to use ordinary care for his protection, or to warn him of his peril, or rescue him from his danger; all of which was negligence, and was the proximate cause of deceased's said injuries and death."

The prayer is that "plaintiff have judgment against defendants, and each of them, for said $50,000 actual damages," etc.

The defendants (through their respective attorneys filed separate answers. Each answer embraced exceptions and a general denial, pleas of contributory negligence and assumed risk, and averments that St. Louis Southwestern Railway Company and Rutland were engaged in interstate commerce at the time, and liability, if any, was governable by the federal Employers' Liability Act (U. S. Comp. St. §§ 8657-8665). In its answer St. Louis Southwestern Railway Company of Texas specially denied negligence in respect to each act or omission separately charged against, and alleged facts tending to show that what it did, or failed to do, in each such instance was proper, and generally alleged that —

"This defendant further shows that the work of delivering cars to this defendant and placing same on said transfer track by the St. Louis, San Francisco & Texas Railway Company was done exclusively by the said St. Louis, San Francisco & Texas Railway Company and its employees, and that this defendant was not in any way connected with said St. Louis, San Francisco & Texas Railway Company, or its employees, in the doing of said work, and had no control over the employees of the said St. Louis, San Francisco & Texas Railway Company engaged in placing cars on said transfer track, and had no authority to direct or control the manner of the operation of said cars, and is in no way responsible for the manner in which said work was done, and had no part in the doing of same."

By supplemental petition plaintiff generally and specifically denied averments of the two answers upon which defenses therein were predicated, except in paragraph 4 —

"Plaintiff admits as to the defendant St. Louis Southwestern Railway Company of Texas that it is true, as alleged by said defendant in its said first amended original answer, `that at the time the deceased, Sam J. Rutland, was injured and killed he was employed by this (said) defendant, a common carrier by railroad, engaged in interstate commerce, and that said Sam J. Rutland was engaged in interstate commerce at said time, and therefore this plaintiff's cause of action (as to said defendant) is controlled by a proper construction of the acts of Congress of the United States, governing those thus engaged.'"

Paragraph 5 reads as follows:

"This plaintiff specially denies that the deceased was an employee of the defendant St. Louis, San Francisco & Texas Railway Company, and denies that plaintiff's cause of action is governed and controlled by the acts of the Congress of the United States, commonly known as the `Employers' Liability Act,' as applied to said defendant; but she shows that said defendant, St. Louis, San Francisco & Texas Railway Company, is liable to plaintiff under the laws of the state of Texas applicable to the facts appearing herein."

Upon the trial, and after all testimony had been introduced, St. Louis Southwestern Railway Company was dismissed from the case upon plaintiff's motion. Thereupon the case, as against plaintiff in error, was...