St. Louis, A. & T. Ry. Co. v. Johnston

• Decision Date: 25 November 1890
• Citation: 15 S.W. 104
• Parties: ST. LOUIS, A. & T. RY. CO. v. JOHNSTON.
• Court: Texas Supreme Court

15 S.W. 104

ST. LOUIS, A. & T. RY. CO. v. JOHNSTON.

Supreme Court of Texas.

November 25, 1890.

Appeal from district court, Smith county; FELIX J. McCORD, Judge.

Finley, Marsh & Butler, for appellant. J. M. Duncan and T. N. Jones, for appellee.

GAINES, J.

Arthur Johnston, a locomotive engineer in the employment of the appellant company, was killed by the derailment of his engine at a street crossing in the city of Tyler. The accident occurred on the Kansas & Gulf Short-Line Railroad, which road was being operated, at the time of the accident, by the appellant company. The appellee is the widow of the deceased, and brought this suit to recover of appellant damages for his death. The action was brought, not only for the benefit of the plaintiff, but also for the benefit of James H. Johnston, Capitola Wills, and Jennie Johnston, the son and daughters of the deceased. The derailment was caused by sand which had been washed upon the track from the street on the day of the accident. The street, which had been recently opened, ran, at the point, east and west, and crossed the railroad very nearly at right angles. From the track west, the street inclined upwards for a distance of several hundred feet. The soil being sandy, when a heavy rain fell it would carry the sand down the street and upon the track of the railroad, submerging it. There was testimony to show that this had occurred on several occasions before the derailment, and it was not disputed that on the very morning of the day on which the accident occurred it had been found necessary to remove the sand from the track at that point.

It is assigned that "the court erred in permitting, over defendant's objection, plaintiff's witnesses T. J. Dobbs and J. J. Clark, and plaintiff's witness Ed Green, to testify that defendant, subsequent to the accident, made changes in its road and the crossing at the place where the accident occurred." This court has held that it is not competent, in order to show a negligent and faulty construction on part of a railroad, to prove that, subsequent to the occurrence which gave rise to the cause of action, they had altered the work. Railway Co. v. McGowan, 73 Tex. 355, 11 S. W. Rep. 336. The obvious ground is that the mere fact that a company, after the happening of an accident, has attempted, by an alteration, to render their structures more secure, is no evidence that they knew, or ought to have known, them to be faulty before the accident occurred. A contrary rule would deter companies from making improvements which might affect existing litigation; and for that reason the rule as adopted by this court commends itself on the ground of public policy. But in this case the bill of exceptions shows that the testimony was admitted upon two grounds. One was to explain a photograph of the crossing, which had been taken after the accident had happened, and after the changes had been made, and which had been introduced in evidence; there being a contention on part of the defendant that the washing of said sand upon the crossing could not have been prevented. The other ground for its admission was that it tended to prove that the defect could have been remedied. If the change had been made by the city, and the danger had been obviated, the fact would even then have been good evidence, as showing that it was practicable so to construct the crossing as that sand would not wash upon the track. The testimony was competent and relevant for the purposes for which it was admitted, and the cases cited by appellant do not apply. If a charge had been asked on behalf of defendant to the effect that the mere fact the company had changed the crossing after the accident was not of itself evidence of negligence, it should have been given.

The court did not err, as claimed by appellant, "in permitting plaintiff's witness J. J. Clark to testify, over defendant's objections, that the crossing was not constructed as crossings usually are on railways properly built and maintained; and in permitting E. H. Wells, a witness for plaintiff, to testify, over defendant's objections, that he did not think, upon a railroad properly constructed and maintained, that the crossing was a properly built and constructed road crossing, and properly defended against the inflow of water." The witnesses qualified as experts. The fact that the crossing was not constructed as railroad crossings usually are was not conclusive proof either that it was safe or defective, but, in connection with the other testimony in the case, tended to show the latter. Wells was a civil engineer, and had acted as such in the construction of the railroad upon which the accident occurred. He was competent to testify to his opinion as to whether the crossing was properly constructed or not.

Neither did the court err in permitting witnesses to testify as to the average wages of an engineer of Johnston's experience. The damages suffered in cases...