Taylor, B. & H. Ry. Co. v. Taylor

• Decision Date: 16 December 1890
• Citation: 14 S.W. 918
• Parties: TAYLOR, B. & H. RY. CO. v. TAYLOR.
• Court: Texas Supreme Court

14 S.W. 918

TAYLOR, B. & H. RY. CO. v. TAYLOR.

Supreme Court of Texas.

December 16, 1890.

Appeal from district court, Williamson county; JOHN C. TOWNES, Judge.

S. R. Fisher, for appellant. Cochran & Parker, for appellee.

COLLARD, J.

This suit was brought by Mrs. M. V. Taylor against the appellant railway company for actual and exemplary damages, because of injuries to her husband, resulting in his death, while riding on defendant's work train, he being at the time an employe of defendant as a section foreman. He was section foreman of section No. 2. He received his injury on section No. 5, which was in charge of section foreman Pierce. On the morning of the 28th March, 1888, defendant started its work train from Taylor south towards Bastrop, picking up the bosses of the various sections, and their hands, intending to take them to a gravel-pit between Sayers and Bastrop, there to load the cars with gravel for the use of the road. The train was composed of an engine, tender, 12 flat-cars, and a caboose. By the time the train had reached Cedar Hollow, on section No. 5, where the accident occurred, some 20 or 25 men had been taken aboard the train. There was evidence showing that the caboose was crowded, and some of the men rode on the flat-cars, of which there were 12 in the train. It was more dangerous to ride on the flat-cars than on the caboose. It was customary for the men to ride on the flat-cars whenever they pleased, and the custom was known to the company. There was no order prohibiting such practice. Taylor rode awhile on the caboose, then moved onto a flat-car near the engine, and then to the third car from the engine. The track was in bad condition in many places. There were several defective places near the north end of bridge across Cedar Hollow. Right at the bridge there was a rise on the north side so that the engine and cars south had to mount the rise to get on a level with the bridge. North of this there were uneven places in the track, caused by the rails and ties sinking down into the road-bed as the engine and cars passed over. Thirty feet north of the bridge was the first sunken rail, at the first joint north of the bridge. It was the practice of old engineers, who were familiar with the road, and acquainted with the bad places, to reduce the speed of the train to about nine miles an hour in passing over these uneven places. It was dangerous to run over them at a speed of 12 or 15 miles per hour. When the train was slowed up to a speed of not more than 9 miles an hour, there was no danger at the bridge. There was no danger when an old engineer had charge of the engine and used such caution. The danger was when a new engineer might be running over it. This place had been in bad order about a month before the wreck. The road-master had had his attention called to it by Engineer Garrett, who slowed up his train in passing over it, and the road-master said he would order it repaired, and he did order Pierce, the section foreman, to repair it. Pierce did repair a place 60 feet from the end of the bridge, supposing that was the place to be fixed, but he said it was level nearer the bridge, and needed no repairs. The place he did fix, he said he did not fix perfectly. A top-heavy engine running over the place would roll and careen to one side. The work train, with the hands aboard, as before stated, was running over this part of the road, a new engineer to this part of the road in charge of the engine, and, a few feet before reaching the north end of the bridge, the engine or tender ran off of the track on the right side, not far from where the sink was. The caps of the bridge were struck, and the bridge went down, drawing several flat-cars into the chasm. The train at the time was running 12 or 15 miles an hour; not more than schedule time. Taylor was seriously hurt in the wreck, and in a few days thereafter died of his injuries. Some of the witnesses say the cause of the wreck was a loose joint in the track north of the bridge that would sink when the engine was on it, and spring back level when the weight passed over it. It had in this way sunk the roadbed at the point, and rendered it dangerous. It was in proof by one witness that the sunken place ran up close to the bridge, within 12 or 15 feet. One of defendant's engineers, yet in the employ of defendant, testified, concerning the low joint, north of the bridge on the right-hand side going south, and said he had called Johnson's, the road-master's, attention to it twice, and at one time slowed over it and told him to watch it; that he had called Pierce's attention to it three days before the wreck. Johnson promised to have it fixed, and did throw off a note to Pierce ordering him to fix it. He says: "Before I was told where the wreck occurred, I told my conductor that I knew the spot where it had occurred. I knew the place because of my knowledge of its defective condition there." It was in proof that Taylor had been on the train, and had passed over that part of the track the day before, and possibly oftener; but it was not on his section. Many others, who had passed over the place, said that they had not noticed any defect in the track at the point, and several, who had been over it frequently. The conductor in charge of the train had been over it three or four times, but had not noticed anything wrong there. There was much evidence tending to show that the road was in passable condition; that is, in ordinary repair. Albaugh, another section foreman, who, with his men, was taken on the work train that morning, testified that he saw Taylor on the train. He says: "When I first got on the train, I took my place in the caboose, and remained in there for an hour or so, but I got out onto a flat-car at Coupland, and stayed out until the wreck. I was on the third car from the engine. Taylor was on the car with me, as was another man I did not know. Taylor was on the second car from the caboose when I met him, and he went to the third from the engine, on which I was riding. He had been with me on that car about twenty minutes, and was on that car at the time of the accident. At the time of the wreck, I first saw the tender jump the track, and by that time Taylor got ready to jump, and he jumped and struck the cap of the bridge, and that was the last I saw of him. I slid across the bridge on the flat without any trucks under it, until it got over the bridge, and I do not know whether I jumped or walked off. The flat I was on scooted over the opening. I told Taylor not to jump. I told him because the first two cars were in the direction he was going to jump, and I was afraid he would be caught in the wreck of the cars. I was not hurt. The caboose did not go off the track. The day before, when I rode over it, it seemed to be in a fair condition, but there might have been a swing in it, I could not tell. In my judgment that track, for a new road-bed along there for about twelve miles, was in good condition. All new road-beds sink more or less. All new road-beds do not stay sunk. They are supposed to be kept up. When a place gets out of order, a man can fix it up in a day, but how long it will stay is another thing." Perrin, the engineer in charge of the engine at the time of the accident, testified, when first on the stand, that the speed of the train at the time and place of the wreck "was about 12 miles an hour. It might have been a mile or two faster, or a mile slower. That is about the speed." He said he "was on track that he was allowed to make fifteen miles an hour on." He was afterwards recalled, and testified that he could not state the speed of the train as he passed over the place on the day before the accident, but says: "I was going about as fast as I thought it was safe. I guess it may have been twenty or twenty-five miles an hour, at the point between the gravel-pit and Elgin." Avery testified that he took a load of gravel over the place the day before the wreck, going twenty-five or thirty miles an hour, but he was going north, with engine and pilot in front. Other particulars of the case will be stated hereafter if required. The jury gave verdict for plaintiff for $5,000 actual damages; judgment was rendered accordingly, and defendant appealed.

The first assignment of error is that the court erred in overruling defendant's general demurrer to plaintiff's original petition, and, in particular, to such parts thereof as claimed exemplary damages. There is no question but that the petition was sufficient in law for the recovery of actual damages, and, had it been defective in the claim for exemplary damages, the defect could not be reached by a general demurrer.

The next assignment is that the court erred in permitting plaintiff to introduce evidence tending to show the condition of the track and road-bed immediately before and at the time of the wreck, at places other than where the wreck occurred. This question has been decided adversely to appellant in Railroad v. De Milley, 60 Tex. 195. The point is elaborated in that case, and needs no further discussion.

The next assignment of error, presented in appellant's brief, is that the court erred in its charge to the jury in failing to define the terms, "negligence," "gross negligence," and "contributory negligence." The court did not attempt to give any abstract definitions of these terms, but...