St. Louis & S. W. Ry. Co. of Texas v. Arnold
| Decision Date | 22 April 1903 |
| Citation | 74 S.W. 819 |
| Parties | ST. LOUIS & S. W. RY. CO. OF TEXAS v. ARNOLD et al.<SMALL><SUP>*</SUP></SMALL> |
| Court | Texas Court of Appeals |
Appeal from District Court, Grayson County; Rice Maxey, Judge.
Action by J. H. Arnold against the St. Louis & Southwestern Railway Company of Texas and others. From a judgment in favor of plaintiff, defendant railway company appeals. Affirmed.
E. B. Perkins and Head & Dillard, for appellant. Hall, Flippen & McCormick and Smith, Templeton & Tolbert, for appellee.
The first amended original petition, on which this case was tried, was filed on the 14th day of August, 1901. It complained of the St. Louis Southwestern Railway Company of Texas, and of the American Steel & Wire Company, a corporation organized under the laws of the state of Illinois, and sought damages against them on account of an injury that befell plaintiff on the 14th day of May, 1901. It alleged that plaintiff on that day was working for the defendant railway company as a section hand; that, while he was in the performance of his duty as such section hand, one of the trains of defendant railway, operated by its servants, passed at a speed of 25 miles an hour. Plaintiff stepped off the track to get out of the way of the train, and, when it passed, some timber for fencing purposes was thrown off the train, striking plaintiff, and bringing about the injury for which he sues. Plaintiff alleges that the persons engaged in throwing the timber from the train were employés of the railway company, and were guilty of negligence in the speed at which they operated the train. Plaintiff alleged in the alternative that, if he was mistaken in charging that the persons who handled the timber were employés of the railway company, then they were employés of the defendant steel and wire company, and acting for it in throwing the timber from the train, and were guilty of negligence, for which that company was liable.
The first citation served on the American Steel & Wire Company was quashed. It was again cited to appear, and presented a plea in abatement, which was overruled, as appears by bill of exceptions, whereupon the American Steel & Wire Company, as well as defendant railway company, having filed answers, the case went to trial. On the trial the court gave a peremptory instruction to return a verdict for defendant steel and wire company, but submitted the case on issues as between the plaintiff and the defendant railway company. The jury returned a verdict for the wire company, but against the railway company, for $1,900, upon which judgment was entered.
We find that the plaintiff was injured substantially as alleged in his petition, and there is evidence which tends to show that he was not guilty of contributory negligence. The plaintiff was a section hand, and, with others of that class, was working upon appellant's railway, and upon the approach of the train he stepped a few feet from the track, when a piece of timber was thrown from one of the cars; one end striking the ground, and the other hitting plaintiff, and causing the injuries he sustained. The piece of timber was thrown from the car by the servants of the steel and wire company, who were distributing timber near and along the track for the purpose of fencing the same. And there is evidence which authorizes the conclusion that the servants of the railway company in control of the train knew that the timber was being so distributed, and knew of the purpose and intention of the steel and wire company to throw timber from the car. At the time the piece of timber was thrown from the car the train was going at the rate of about 20 or 25 miles an hour, and the evidence warrants the conclusion that, as to persons rightfully standing near the track, it was negligence to throw timber from the car when the train was going at that rate of speed. The train from which the timber was thrown was one of the appellant's regular freight trains, operated and controlled by one of its crews. The plaintiff was not a trespasser, and was rightfully near the track when he was injured. The engineer and other employés operating the train could have seen the plaintiff and the other section hands if they had exercised ordinary care. And there is evidence which warrants the conclusion that they should have expected to find section hands upon and near the railway track; and it is apparent that, if the servants of the railway company and the steel and wire company had exercised proper care, they could have discovered the near proximity of plaintiff and the other section hands to the track. Consequently we reach the conclusion that the railway company, as well as the servants of the steel and wire company, were guilty of negligence in throwing the piece of timber from the car under the circumstances. The steel and wire company were distributing the timber along the track, under the direction of the railway company, by virtue of a contract which is fully set out in the record, by the terms of which the steel and wire company were to construct and erect a right of way fence near the track. It is unnecessary for us to repeat the terms of the contract, as it is fully stated in the record. We are of the opinion that the court correctly construed the contract as not relieving the railway company from liability to the plaintiff, or giving a cause of action to the former over against the steel and wire company.
The appellant contends that it is not liable to the plaintiff, because the negligence of the servants of the steel and wire company in throwing the timber from the car was the proximate cause of the injury. A railway company, in the movements of its trains which are operated by it, either wholly or partially for its benefit, cannot, by contract or otherwise, relieve itself of the duty that it owes to the public and its employés to exercise ordinary care to safely operate same at times and places where the safety of persons requires this to be done. Collins v. Texas & Pacific Ry. Co. (Tex. Civ. App.) 39 S. W. 643; G. H. & S. A. Ry. Co. v. Garteiser (Tex. Civ. App.) 29 S. W. 940; Burton v. Ry. Co., 61 Tex. 533; and Ry. Co. v....
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