St. Louis Southwestern Ry. Co. v. Brothers

• Decision Date: 21 March 1914
• Citation: 165 S.W. 488
• Parties: ST. LOUIS SOUTHWESTERN RY. CO. v. BROTHERS.
• Court: Texas Court of Appeals

Page 488

165 S.W. 488

ST. LOUIS SOUTHWESTERN RY. CO. v. BROTHERS.

Court of Civil Appeals of Texas. Dallas.

March 21, 1914.

Rehearing Denied April 11, 1914.

Appeal from District Court, Hunt County; A. P. Dohoney, Judge.

Action by C. E. Brothers against the St. Louis Southwestern Railway Company. From an adverse judgment, defendant appeals. Reversed and remanded.

E. B. Perkins, of Dallas, and Crosby, Hamilton & Harrell, of Greenville, for appellant. O. C. Mulkey, of Commerce, and Evans & Carpenter, of Greenville, for appellee.

RASBURY, J.

In view of what we consider to be the controlling issue in this case, a sufficient statement of the pleading is that C. E. Brothers sued appellant for damages for personal injuries caused by cinders being blown into his eye while upon one of appellant's trains en route from Ft. Worth to Commerce, Tex., as the result of appellant's negligence in the operation of its train. About 5½ months after Brothers' injury, and about two months after the suit was filed, he died, and his parents, Hence and Maggie Brothers, intervened in the suit, alleging his death and that it resulted from the injuries detailed, and sought damages therefor.

Appellant pleaded in abatement of the suit that it was a common carrier of freight and passengers, and C. E. Brothers its employé at the time of his injury, both engaged at that time in transporting interstate freight and passengers, and that interveners could not for that reason prosecute the suit in their individual capacities, but that same could only be maintained by the personal representative of the deceased, as provided by the terms of the federal Employers' Liability Act. Appellant further urged, subject to its plea in abatement, its special exception, asserting that the petition was insufficient, because it failed to allege facts which would authorize interveners to prosecute the suit.

Interveners, in response to the plea in abatement, averred that there was no administration pending upon the estate of C. E. Brothers, and no necessity therefor, since at the time of his death he owned no property whatever, nor were any debts due him by others; and further that, at the time he was injured, he was not in the service of appellant, but was traveling as a passenger upon one of appellant's trains, and as a consequence the federal rule did not apply.

Appellant's plea in abatement, upon hearing, was overruled, as was also the special exception upon argument. There was trial by jury, with verdict for interveners followed by like judgment, from which this appeal is prosecuted.

The facts essential to a disposition of this appeal, and which are undisputed, are in substance as follows: Appellant is, and was at the time Brothers was injured, a common carrier of freight and passengers, engaged in both interstate and intrastate business or commerce. Prior to and at the time Brothers was injured, he resided at Commerce, and at the time of such injury he was employed by appellant as "extra" brakeman. Preceding the day on which Brothers' eye was injured, he served as brakeman for appellant on a train from Texarkana to Ft. Worth. The train came from Little Rock, Ark., to Texarkana over the St. Louis Southwestern Railway Company and from Texarkana to Ft. Worth over the line of the appellant, St. Louis Southwestern Railway Company of Texas. The train on which Brothers served as brakeman from Texarkana to Ft. Worth was a passenger train and had on board interstate passengers destined for points within Texas, being in fact an excursion train returning from a reunion of Ex-Confederate soldiers from Little Rock. The train reached Ft. Worth, which was its final destination, about midnight. Brothers spent the remainder of the night in Ft. Worth. The following morning he received a "pass" from appellant, which authorized him to return over appellant's line of railway to Commerce. For that purpose he boarded one of appellant's regular passenger trains at Ft. Worth and did return thereon to Commerce. En route the cinder that caused his injury was lodged in his eye. The train on which he returned was engaged in interstate commerce. Brothers performed no service whatever on the train that returned him from Ft. Worth to Commerce, but by the terms of his employment appellant, nevertheless, paid him for his services from the time he left Texarkana until it returned him to Commerce, as if actually in service, furnishing him as well transportation from Ft. Worth to Commerce. Commerce was a terminal of appellant and the place where Brothers received orders, and he was instructed by his superior when he left Ft. Worth to report to the proper officials at Commerce for further orders in line with his employment. Brothers arrived at Commerce at 1 p. m. of the same day, remaining there until 11:45 p. m., when he was sent out on an extra freight train; his run being from Commerce to Mt. Pleasant, which train was engaged in interstate commerce. Brothers returned from Mt. Pleasant the next day on a train also engaged in interstate business.

Thus it will be seen that the evidence in the record, and which we have stated in substance, discloses without conflict whatever that the train on which Brothers served as extra brakeman was engaged in interstate commerce. It, in like manner, discloses that the train on which he was traveling back to Commerce under instructions of his superiors to there report for further duty was also engaged in interstate commerce. And finally that the train upon which he begun his duties after arriving at Commerce was also engaged in such commerce. The facts related being true, appellant asserts that the court should have sustained its plea in abatement, and, if not, then its special exception, both of which asserted that interveners' cause of action, if any they had, arose under the act of Congress of ...