Taylor v. Dunn

• Decision Date: 05 May 1891
• Citation: 16 S.W. 732
• Court: Texas Supreme Court
• Parties: TAYLOR v. DUNN <I>et al.</I>

16 S.W. 732

TAYLOR v. DUNN et al.

Supreme Court of Texas.

May 5, 1891.

Appeal from district court, Travis county; A. L. WALKER, Sr., Judge.

Robertson & Williams and G. F. Pendexter, for appellant. J. H. Robertson and H. B. Barnhart, for appellees.

STAYTON, C. J.

This action was brought to recover damages for an injury received by Mrs. Dunn which it may be conceded resulted from negligence of those in charge of a locomotive engaged in the transportation of material for the construction of the present state capitol. After Abner Taylor became the contractor to build the capitol, he asked permission from the city council of the city of Austin to construct a railway on and over certain streets connecting the capitol site with the railways entering the city. Such a connection by rail seems to have been almost indispensable for the transportation of material brought to the city by rail, much of which was very heavy. On January 6, 1883, an ordinance was passed giving this permission. The ordinance was as follows: "Section 1. Be it ordained by the city council of the city of Austin that the contractors for building the new state capitol, Mr. Abner Taylor and his associates, are hereby granted the right and authority to construct and operate a railroad track, of the standard or less gauge, from the intersection of the Houston & Texas Central and Austin & Northwestern Railroads with East avenue; northward on East avenue to College avenue; thence westward on College avenue to Brazos street; thence on and across Brazos street to the capitol grounds, — for the use and purpose only of conveying to the capitol grounds material of any character to be used in the construction and erection of the new state capitol building; and it is expressly stipulated that said railroad shall not be used for any other purpose. Sec. 2. The locomotive and cars used on said road shall at no time be run at a greater speed than six miles per hour, and all locomotives at night, when running, shall have a well-lighted head-light, and the usual light shall be displayed at the rear end of all trains. The locomotive bells shall also be distinctly rung at and before crossing every traveled street The trestle work over College avenue across Red River street shall be so constructed as not to impede or hinder the travel on Red River street; and at the crossing of any other street now used, or which may hereafter be used, for vehicle travel, the crossing shall be planked, and the adjacent ground on both sides shall be so graded as to form a safe and easy crossing. Sec. 3. Said capitol contractors, Mr. Abner Taylor and his associates, shall have and continue the use and occupation of said railroad, as provided in the first section of this ordinance, until the said capitol building shall be completed, and no longer; and on the completion of the said capitol building said capitol contractors shall, at their own cost and expense, remove from said avenues and streets, on which the right of way is hereby granted, all the material used in the construction and occupation of said road, as well as all the rubbish accumulated by virtue of said use and occupation. Said capitol contractors shall enter into bond, with good and approved security, to the mayor of the city of Austin and his successors in office, in the sum of ten thousand dollars, conditioned that they will, within ninety days after the completion of said building, remove the material and rubbish referred to in this section. Sec. 4. Said contractors, Abner Taylor and his associates, shall be liable and responsible to any and all persons for any damage or injury that may result to him or them or their property from the construction, use, and maintaining of said railroad. Sec. 5. The right of way is hereby also granted to said capitol contractors on Pine and Cedar streets for such curvatures as may be necessary to form proper connection with the Houston & Texas Central and Austin & Northwestern Railroad tracks. Sec. 6. The rights and privileges granted by this ordinance are a gratuity to the contractors for building the state capitol, as herein mentioned, and said rights and privileges shall not be sold or transferred to any other parties; therefore, if the contract for building the said capitol now existing between the Capitol Syndicate and the state of Texas shall, at any time before the completion of the said capitol building, be annulled, then at the same time the right of way and all of its privileges, as herein granted, shall be null and void, and this ordinance shall no longer be in force; and it is further provided that if, at any time, said capitol contractors shall fail to observe the conditions of this ordinance, then such failure shall operate as a forfeiture of the grant herein made. Sec. 7. This ordinance shall take effect and be in force from and after its passage, and all ordinances and parts of ordinances in conflict with this ordinance are hereby repealed."

The bond executed in pursuance of this ordinance is as follows: "State of Texas, county of Travis. Know all men by these presents, that we, Abner Taylor, as principal, and A. C. Babcock, C. B. Farwell and John V. Farwell, as sureties, are held and firmly bound unto W. A. Saylor, mayor of the city of Austin, and his successors in office, in the penal sum of ten thousand dollars, for the payment whereof well and truly to be made we, jointly and severally, bind ourselves and each of us, our and each of our heirs, executors, administrators, and assigns. Given under our hands this, the ninth, day January, A. D. eighteen hundred and eighty-three. The condition of the above obligation is such that, whereas, on the sixth day of January, 1883, the city council of the city of Austin passed an ordinance granting to the contractors of the new state capitol, Abner Taylor and his associates, the right to construct, maintain, and operate a railroad on East and College avenues, for the purpose of conveying building materials to the capitol grounds, and by the third section of the said ordinance it is provided that said capitol contractors, Abner Taylor and his associates, shall have and continue the occupation and use of said railroad, as provided in the first section of said ordinance, until the said capitol building shall be completed, and no longer; and on the completion of said capitol building said capitol contractors shall, at their own cost and expense, remove from said avenues and streets on which the right of way in said ordinance is granted, all the material used in its construction, as well as all the rubbish accumulated by virtue of said use and occupation; said capitol contractors shall enter into bond, with good and approved sureties, to the mayor of the city of Austin and his successors in office, in the sum of ten thousand dollars, conditioned that they will, within ninety days after the completion of said building, remove the material and rubbish referred to in this section: Now, if the said Abner Taylor and his associates shall remove the material and rubbish referred to, and shall grade the streets as they originally were, to the satisfaction of the street committee of the city council, within the time prescribed after the capitol building shall have been finished, and shall keep the railroad track and all street crossings so that they shall at all times be an easy and safe crossing for vehicles at the proper crossings, and should the said Abner Taylor and his associates fail to remove the rubbish aforesaid and keep the crossings in repair, so that there shall be easy and safe crossings, then the city engineer and street committee of the city of Austin shall have the same repaired, and collect the amount for such repairs from said Abner Taylor, his associates, and the sureties on this bond; that, for a violation of this bond, suit may be brought, and legal proceedings instituted at the city of Austin, Travis county, Texas; and that a recovery on the bond shall not render it void, but it shall remain in full force and effect until the whole penalty of the bond shall be exhausted. If the said Abner Taylor and his associates shall do and perform all the obligations, stipulations, and requirements in the said ordinance granting the right of way and this bond required, this instrument shall be null and void; otherwise, to be and remain in full force and effect"

The cause was tried without a jury, and, with others, the court made the following findings: "Defendant Taylor, in July, 1885, made a subcontract with Gus Wilke, by which Wilke was to furnish the material and to complete the capitol building. In the contract, Wilke was to have the full use of the railroad and cars, etc. This full control he had; the supervision over the work being by the commission representing the state, and Taylor's agent present and representing defendant, but having no control over the employes. December, 1885, Wilke applied to the city council for leave to lay an additional rail upon the track, and to make connection with the Austin & Northwestern Railway track. In January, 1886, the ordinance passed granting to Wilke said privileges, and at once the additional rail-was placed and the conceded connections made. This was needed for conveying granite to the capitol, and the cars in use, April, 1886, were in use conveying the granite from the Austin & Northwestern Railroad, and it is evident that the city authorities knew of Wilke's using the Abner Taylor railroad, and for the purposes for which it was made. Since Wilke's subcontract July 25, 1885, he has carried on the construction of the capitol building, hiring and paying hands, and directing their movements. Taylor, however, has an agent and supervisor present, protecting his interests. The state capitol commissioners superintend; Taylor's agent watches the work as it progresses, makes monthly reports, etc., for Taylor. * * *" The fifteenth finding of fact is as follows: "(15) The concession to...