Texas Cent. Ry. Co. v. Rowland

• Decision Date: 26 April 1893
• Citation: 22 S.W. 134
• Parties: TEXAS CENT. RY. CO. v. ROWLAND.
• Court: Texas Court of Appeals

22 S.W. 134

TEXAS CENT. RY. CO. v. ROWLAND.

Court of Civil Appeals of Texas.

April 26, 1893.

Error from district court, Eastland county; L. W. Campbell, Special Judge.

Action by T. L. Rowland against the Texas Central Railway Company. Judgment for plaintiff. Defendant brings error. Affirmed.

L. W. Alexander, for plaintiff in error. Ward & Faulk, for defendant in error.

TARLTON, C. J.

Before the Honorable L. W. Campbell, as special judge, T. L. Rowland recovered in the district court of Eastland county, against the Texas Central Railway Company, on May 30, 1888, a judgment for $9,500 as damages for personal injuries caused by a collision of defendant's trains at Cisco, Tex. The injury is ascribed in plaintiff's petition to the negligence and incompetency of Joke Hull, a servant of the defendant, and a fellow servant of plaintiff. It is also ascribed to the failure of the defendant to keep, at the point of collision, any signal or warning, and to prescribe and maintain rules and regulations for the movement and switching of its trains.

Conclusions of Fact.

Defendant in error was a fireman in the employment of appellant. The route of his service extended from Cisco, in Eastland county, to Albany, in Shackelford county. One Joke Hull was an engineer in the employment of appellant. At Cisco the track of the Texas Central, coursing north and south, intersected with the track of the Texas & Pacific Railway Company, coursing east and west. At this point, also, trains of the Texas Central Railway Company running between Cisco and Albany met and connected with trains of the same company running between Cisco and Waco. Passengers, baggage, and mail matter of the Texas Central train arriving at Cisco from Waco were daily transferred to the train of the same company leaving Cisco for Albany. After this transfer the Waco train was turned southward by means of a switch and Y track, leaving the main track of the Texas Central on the west a proper distance south of the point of intersection with the Texas & Pacific track. The latter track was used as a part of this Y track until a point was reached at a proper distance east of the main line of the Texas Central, whence, by means of another Y track, the main track of the Texas Central was again reached by the train then turned southward. By means, also, of this Y track the train reaching Cisco from Albany was turned northward for its return trip. Hull, as an engineer, acted in the capacity of what is known as a hostler in turning these trains. At a point 10 or 12 feet of the main track of the Texas Central, and 7 or 8 feet south of the Texas & Pacific track, and near the point of intersection of the two tracks, was a Union Depot, a building of such dimensions that a person on a train of the Texas Central east of it was unable to see a train on the Texas & Pacific track going east until the latter had passed the building. On July 25, 1882, the train going north to Albany was in proper position east of the Union Depot. The passengers and baggage had been transferred from the Waco train, and, the hour of departure — 2:15 o'clock P. M. — having arrived, the defendant in error, as fireman, had rung the bell, and the engineer had blown the whistle, and the train had reached the point of intersection with the Texas & Pacific track, when the Waco train, operated and in process of being turned by Hull, collided with it, and overturned the engine upon Rowland, very seriously injuring him. The engineer Hull, as the jury found on evidence sufficient, though contested, had given no warning of the approach of his engine. He was drunk at the time of the collision. He was addicted to drink, and the defendant had been notified of that fact, though the plaintiff was unaware of it. Hull was hence incompetent. On the issue whether the defendant kept targets or signals at the crossings of the tracks, or prescribed rules with reference to the operation of its trains, the evidence was meager, and was as follows: The plaintiff testified: "There had never been any targets or flags at the crossings while I was working there. I knew there were none." The witness Joke Hull testified: "We had no special instructions with reference to switching trains over the crossings before or after the passage of trains."

Conclusions of Law.

The court did not err in requiring defendant to go to trial on the second day of the term, though the case was a jury case, and though no day had been fixed for calling the jury docket. While the defendant stated that a witness was absent whose testimony was material, and who was expected to arrive soon, this statement does not seem to have been deemed sufficiently serious to be embodied in an affidavit for a continuance; on the contrary, defendant stated that it had no grounds for a continuance. It nowhere appears that the defendant was deprived of testimony by the action of the court, nor that it was in any way injured. One Worthington, a witness for the plaintiff, having testified that he knew Joke Hull about all the time he was in the employ of defendant at Cisco, and that he did not know his reputation as to temperance or intemperance, was permitted, over the objection of defendant, to testify further as follows: "That witness knew, during his acquaintance with Hull, that he drank intoxicating liquors. That he drank a good deal of whisky and beer; supposed about fifteen drinks a day; perhaps more or less; some days more, and some days less. That he drank pretty much every day. Some days he may have drunk more, but they were very few. That he had seen him under the influence of liquor a good many times, when it appeared to be that he was drinking pretty much all the time. Was around the saloon when witness was attending bar. Some months he would have a bar bill of $15 or $20." This testimony was objected to because it did not appear that these facts were communicated or became known to the defendant or its agent. We think that the evidence was admissible. The fitness of Hull for the position of trust to which defendant had assigned him was a question in issue. These acts threw light upon this issue. They tended to show intemperance, or a character (as distinguished from a reputation) for intemperance, on the part of the engineer. It was incumbent on plaintiff to show (1) the intemperance of the engineer, and (2) that his intemperance was known, or that knowledge thereof was to be imputed, to the defendant. These were the two necessary links in the plaintiff's chain of evidence. The testimony objected to tended to supply the first link. It was therefore competent. Railway Co. v. Willie, 53 Tex. 327; Railway Co. v. Patton, (Tex. Sup.) 9 S. W. Rep. 175; 7 Amer. & Eng. Enc. Law, 852, 853, and notes. It is not necessary to consider whether this evidence alone would have been sufficient to establish the issue of incompetency so as to affect the defendant, because it was supplemented by testimony showing that the general reputation of Hull for sobriety was bad, and that the defendant's agent who had supervision of the road had been informed of his intemperate habits. Grube v. Railway Co., (Mo. Sup.) 11 S. W. Rep. 736. The court did not err in instructing the jury that it appeared from the uncontroverted evidence that the plaintiff received the injury by the collision of the defendant's cars. It is within the...