Tex. & Pac. R'Y Co. v. McAllister

• Decision Date: 01 May 1883
• Docket Number: Case No. 4807.
• Citation: 59 Tex. 349
• Court: Texas Supreme Court
• Parties: TEXAS & PACIFIC R'Y CO. v. A. F. MCALLISTER.

59 Tex. 349

TEXAS & PACIFIC R'Y CO.

v.A. F. MCALLISTER.

Case No. 4807.

Supreme Court of Texas.

May 1, 1883.

APPEAL from Harrison. Tried below before the Hon. A. J. Booty.

The following statement by appellee is adopted:

A. F. McAllister instituted suit in the district court of Harrison county, Texas, on the 16th day of April, A. D. 1879, against the appellant, the Texas & Pacific Railway Company, alleging that appellant was a corporation duly created under the laws of Texas, with its main office in said city of Marshall, Texas; that on the 10th day of February, 1879, the said appellant was engaged in operating a railway for transportation of freight and passengers from the city of Shreveport, in Louisiana, to the city of Marshall, in Texas; that on said day and date appellee was a passenger on one of the trains of appellant (who was defendant below), going from Shreveport, Louisiana, towards the city of Marshall; that when said train reached a point about three and one-half miles from Shreveport, the passenger coach of said train was thrown from and off of the railroad track, upsetting, and that plaintiff (appellee here) was a passenger in said coach.

That the cause of said coach running off from and being thrown from said track was the breaking of an iron rail on which said train was running, which breaking of said rail was caused by the bad condition of the cross-ties which supported said rail, said cross-ties being rotten and entirely worthless for the use made of them. That the entire line of road from Marshall to Shreveport was unsafe for the running of trains, and had been for more than one year; that almost all the cross-ties on said road were rotten and insecure, and made it dangerous for passengers traveling over same in cars of defendant; that such condition showed upon part of defendant gross negligence.

That said train on which appellee was traveling, as aforesaid, as a passenger, was negligently and carelessly conducted by the persons in charge thereof, they being employees of defendant; that said train was a long one, composed of about sixteen freight cars, and there was a passenger coach (in rear of said freight cars), in which appellee and the other passengers were riding; that said rail was broken, as aforesaid, by the engine pulling said train, or by one of the aforesaid freight cars; that the speed of said train was not checked, because the brakeman,(whose post of duty was on top of said freight cars, and at the brakes, said brakes being so attached to said cars as that they can be worked only on top of said cars,) was not at his post of duty, but said brakeman was on the engine, with the engineer and fireman, and absent from his said post of duty; that had said brakeman been on top of said freight cars, and at said brakes, as was his duty to be, he could, by applying said brakes, have wholly stopped said train, or at least have greatly checked the speed thereof, and prevented the accident.

That by the gross negligence and carelessness of defendant, its employees and agents, the accident was caused, and appellee was severely injured by being thrown from one side of the coach to another, striking seats and other objects in said coach, by which the meta carpal bone of the little finger on right hand was broken, his back badly bruised over the lumbar region, and the three lower lumbar vertebræ badly bruised and hurt, so that his back and spine are seriously and permanently injured; that from said injuries he suffered great and constant pain, and still continues to suffer till this time, and was, for four weeks after receiving said injuries, confined to his bed, and he was unable to leave same; that he has, by said injuries, been rendered unable to carry on and attend to his business of farming and planting, thereby causing great loss to him; that by the injuries aforesaid, caused by the wilful negligence and carelessness of defendant and its servants, he has been greatly damaged, to wit, in the sum of $30,000.

On the 13th day of September, 1879, the defendant filed its first amended answer, setting out general demurrer, general denial, and specially that it is a corporation formed under the laws of the United States, and has a railroad which it operates in the state of Texas and state of Louisiana.

That the iron and cross-ties, and other superstructure upon its road-bed were all of good and substantial character; that the iron was purchased from first class iron manufacturers, and the rails were first class in all respects, and the cross-ties on which the said iron rested are sound, and of sufficient size and strength, and in all respects equal to cross-ties usually placed on first class railways; and the servants of defendant, in constructing said railway, and in keeping and maintaining said road, and in running and operating the trains of defendant, were competent and skilful men, careful and prudent in the discharge of all their duties upon said road; and that especially were the railroad track, iron rails and cross-ties sound, good, and in all respects substantial at the place where the accident occurred at which appellee is said to have been injured; and that the servants of defendant in charge of said railroad train at the time and place mentioned were skilful, competent, faithful, and conducted said train in a prudent, cautious and careful manner; and denied that accident was caused by carelessness, negligence or unskilfulness of any of defendant's agents or servants, either in running or operating of said train, or in the selection of the said iron rails or cross-ties, or in the construction of said road, but that the accident was caused (if at all) by the action of weather upon the railroad track, such that no human foresight could see or prevent. That at the time said supposed accident occurred the weather was extremely cold, and that from effects of cold (the iron rail alleged to have been broken) became and was rendered brittle and liable to break, and did break by reason thereof, and not because of any inherent defect in said rail, and not because of unsoundness of cross-ties which supported the rail, and not because of any negligence or fault of defendant, but by reason of said above facts. And that this cause is now pending in the United States circuit court for the eastern district of Texas, at Jefferson; that appellee has appeared there, and consented to continuance of cause.

February 13, 1879, plaintiff filed first supplemental petition, containing general demurrer, special exception to that part of answer alleging that the suit is in United States court, because plea in abatement, and not sworn to; and that part about cold weather causing the rail to break, because it fails to show that defendant could not have prevented same by the exercise of utmost prudence and care; and that part about weather being cold, and a special denial about cause being in United States court.

May 2, 1881, defendant filed trial amendment, setting out more specifically the fact that the cause was in United States circuit court, and swearing to same.

May 9, 1879, defendant filed its petition for a removal of this cause to United States circuit court for the eastern district of Texas, at Jefferson, alleging that the suit of plaintiff was for $30,000, against defendant, for wrong and injuries, and that it arises under the laws of the United States. That defendant is a corporation created, existing and organized under and by virtue of certain acts of the United States, to wit: “An act entitled an act to incorporate the Texas & Pacific Railroad Company, and to aid in the construction of its road, and for other purposes,” approved March 3, 1871, and an act supplementary thereto, approved May 2, 1872.

That defendant has a defense to the said action, arising under and by virtue of a law of the United States, to wit, said act of incorporation. That defendant is not a banking corporation, but is a railroad corporation, authorized to construct, etc., a railroad to and from certain places, in said acts of congress above recited. That defendant offered good and sufficient security, conditioned as required by law, and prayed for a removal to United States circuit court for the eastern district of Texas, at Jefferson, signed by counsel.

May 9, 1879, defendant filed its bond for a removal, in sum of $500, conditioned as law requires, and with two securities, and marked “Approved: J. L. Garrison, Clerk.”

Plaintiff, on 22d day of May, 1879, filed his exceptions to petition for a removal, which were general demurrer, and specially that the petition does not show what the defendant's defense is to said action, arising under and by virtue of a law of the United States, and a denial that said defendant is a corporation created, etc., by act of congress.

May 22, 1879, the court overruled the petition for a removal, but adjudged the bond for removal sufficient.

May 19, 1881, the cause was tried, and resulted in a verdict in favor of plaintiff for the sum of $8,000; judgment of court thereon. Order overruling motion for new trial, and notice of appeal. Statement of facts and bills of exceptions filed after court adjourned.

Geo. L. Hill, N. A. Steadman and A. Poke, for appellee, cited, on sufficiency of the petition to remove the cause, Keyes v. Gold Washing and Water Company, 6 Otto, 199;Pechner v. Insurance Company, 5 Otto, 183;Amory v. Amory, 5 Otto, 186; Sargent v. Stone, Am. Law Reg., vol. 20, No. 1, p. 24; Southern Law Rev., vol. 3, No. 1, p. 1; Railway Co. v. Ramsey, 22 Wall., 322;Ex parte Grimball, Reporter, vol. 7, p. 362; Sewing Machine Cases, 18 Wall., 553; Koontz v. R. R. Co., 104 U. S., 40.

On absence of defense, Const. of U. S., art. III; Keyes v. Gold Washing and Water Company, 6 Otto, 199;Cohens v. Virginia, 6 Wheat., 379; Osborn v. U. S. Bank, 9 Wheat., 534; Cooley's Const. Lim., pp. 173, 391.

That congress has no power to incorporate a railway in a state for private emolument, Const...