Texas & P. Ry. Co. v. French

• Court: Texas Supreme Court
• Writing for the Court: Brown
• Citation: Texas & P. Ry. Co. v. French, 23 S.W. 642, 86 Tex. 96 (Tex. 1893)
• Decision Date: 26 October 1893
• Parties: TEXAS & P. RY. CO. v. FRENCH.

23 S.W. 642

TEXAS & P. RY. CO. v. FRENCH.

Supreme Court of Texas.

October 26, 1893.

Error from court of civil appeals of first supreme judicial district.

Action by W. J. French against the Texas & Pacific Railway Company for personal injuries. A judgment for plaintiff was affirmed by the court of civil appeals, (22 S. W. Rep. 866,) and defendant brings error. Reversed.

F. H. Prendergast, for plaintiff in error. Scott & Jones and Jas. Turner, for defendant in error.

BROWN, J.

W. J. French sued the Texas & Pacific Railway Company in the district court of Harrison county to recover damages for injuries alleged to have been received by him while in the employ of the defendant as a member of a bridge gang, engaged at the time preparing to launch a barge on the Atchafalaya river in the state of Louisiana. He was working under the direction of one Collins, who was also in the employ of the defendant, and foreman of the gang, with power to employ and discharge the hands so engaged under his direction. The injury is alleged to have occurred by reason of the negligence of Collins. The case was tried in the district court, and a verdict was rendered by the jury, and judgment entered by the court in favor of the plaintiff, from which the defendant appealed to the court of civil appeals, which affirmed the judgment of the district court. 22 S. W. Rep. 866. Motion for rehearing was overruled in the court of civil appeals, and a writ of error was granted by this court. Appellant presents as grounds for the revision of the judgment of the court of civil appeals its failure to sustain three assignments of error.

First assignment of error: "The court erred in charging the jury `that it was the defendant's duty to adopt such plans and methods for the conducting of the business in which plaintiff was engaged at the time of the happening of the injury, as, if they had been properly pursued and carried into effect, would have afforded a reasonable degree of safety to those employes engaged in said work at the time; and, if they failed in this respect, defendant would be liable, if injury to plaintiff resulted from such failure.' This was error, because there was no complaint in the pleading or evidence that such plans and methods for conducting the business had not been adopted." In the case of Railway Co. v. Hennessey, 75 Tex. 157, 12 S. W. Rep. 608, this court said: "It is elementary and statutory in this state that the petition shall set forth a full and clear statement of the cause of action; that is, the facts which constitute the cause of action. This is necessary in order to apprise the opposite party of the facts that are expected to be proved. * * * Hence it follows that an act done or omitted which is relied on to establish negligence must be alleged, or proof will not be admitted." Again, on page 158, 75 Tex., and page 610, 12 S. W. Rep., the court in the same case says: "It was good pleading on the part of the plaintiff to set out every material fact upon which he relied for recovery, but he would not be allowed to prove other material facts upon which the petition did not rely." The petition in this case complied with the rule announced, and set out the cause of action as follows: "The plaintiff was digging the ditch by order of his foreman, W. T. Collins;" that W. T. Collins negligently placed a heavy piece of timber on the ground, which said piece of timber was to be used as a skid; that plaintiff was ordered by Collins to dig the ditch alongside of the skid; that the bank gave way under the weight of the timber; that plaintiff was injured by reason of the negligence of Collins in placing the timber on the ground, and causing the ditch to be dug so close to it that the weight of the timber caused the bank to cave. The objection urged by appellant under this assignment is that the allegations of the petition did not make the issue of negligence in failing to furnish plans for the work. The court of civil appeals in passing upon this assignment says: "There was also evidence that this was not the best and safest way in which to do the work, but that there were other methods sufficient for the purpose which were safer." Again, the court says: "The court properly submitted the question of negligence in the planning of the work to the jury." It is clear that the jury was authorized by the charge to conclude that the question as to whether or not the appellant had provided reasonably safe plans for the work was submitted for their determination, and, indeed, could not have arrived at any other conclusion. From all the facts in the case the result of a verdict against the appellant must have been reached by a determination of this issue against it. If the issue was not made by the pleading, the giving of the charge was such error as will require the reversal of the judgment. Loving v. Dixon, 56 Tex. 79; Railway Co. v. Terry, 42 Tex. 451; Markham v. Carothers, 47 Tex. 22. The negligence charged in the pleading was that the foreman, Collins, negligently "placed a heavy piece of timber on the ground, and caused a ditch to be dug" too close to it, from which cause the dirt caved in, and caused the log to fall on the plaintiff. From this allegation the...