Texas & P. Ry. Co. v. Moore

• Citation: 27 S.W. 962
• Parties: TEXAS & P. RY. CO. v. MOORE et al.
• Decision Date: 03 October 1894
• Court: Texas Court of Appeals

27 S.W. 962

TEXAS & P. RY. CO. v. MOORE et al.

Court of Civil Appeals of Texas.

October 3, 1894.

Appeal from district court, Denton county; D. E. Barrett, Judge.

Suit by Cora Moore and others against the Texas & Pacific Railway Company to recover damages resulting from the death of James L. Moore. From a judgment for plaintiffs, defendant appeals. Reversed.

Foster & Wilkinson, for appellant. Alvin C. Owsley and L. M. Bradley, for appellees.

Conclusions.

HEAD, J.

Appellees in this suit seek to recover damages claimed to have resulted to them from the death of James L. Moore, alleged to have been caused by the negligence of appellant on the 4th day of May, 1891. At the time of his death, Moore was in the employ of the receivers of the Missouri, Kansas & Texas Railway Company as brakeman on a freight train running from Whitesborough to Ft. Worth. In this train was a furniture car, which was higher than ordinary freight cars. This class of cars is manufactured for hauling that particular kind of freight, and had been in use over the different railroads of the country, including that of appellant, for several years previous to the date above given. It does not appear, however, that appellant itself owned any cars of this class; but, for the time above named, it had been accustomed to hauling them over its road when tendered to it by other companies. Appellant owned the track from Whitesborough to Ft. Worth, but, at the time aforesaid, it was being used jointly by it and the receivers of the Missouri, Kansas & Texas for the operation of their respective trains, under an arrangement the nature of which is not disclosed by the record, further than that each party employed, paid, and controlled its own train crews. The bridge across Denton creek was constructed high enough to permit brakemen standing upon ordinary freight cars, and especially those owned by appellant, to pass through it in safety, but not high enough for them to pass without stooping while standing upon a furniture car of the class above described. Both appellant and the receivers of the Missouri, Kansas & Texas had in force a rule specially warning employés against standing upright upon cars while passing through bridges of the class of the one across Denton creek. On the date above named, Moore, while engaged in loosening the brakes upon his train, in the performance of his duties, in passing through the bridge across Denton creek, standing upon the furniture car referred to above, was struck by a crossbeam of the bridge, and killed. The evidence discloses that this was the second time Moore had passed over this track in his capacity of brakeman, but does not disclose as to whether or not he was acquainted with the location or structure of this particular bridge, he being employed previous to this trip on that part of the track south of Ft. Worth. The only evidence as to whether or not Moore had knowledge of the rule of the company forbidding employés from passing through these bridges standing upright upon the cars is the fact that when he entered the employ of the receivers, about one month previously, he signed a statement to the effect that he had read their rules, and had his attention called particularly to certain bridges therein named on the southern part of the line, not including the one in question. Verdict and judgment in favor of appellees for $11,000, from which this appeal is prosecuted.

Opinion.

Where the company that owns a railroad track gives to another company permission to run its cars over it, in the absence of evidence showing a legal arrangement varying the rule, the owner must be held to the exercise of ordinary care in the construction and maintenance of the bridges along the track, for the protection of the servants of the leasing company as well as its own. The duty to provide a proper roadbed is one that the owner, by accepting its charter, assumes to all who enter thereon with its permission. Railway Co. v. Lane, 79 Tex. 643, 15 S. W. 477, and 16 S. W. 18. The owning company is not, however, in the absence of a special agreement, liable to the servant of the using company for an injury caused by the negligence of the latter or of its servants. Railway Co. v. Culberson, 72 Tex. 375, 10 S. W. 706; Evans v. Railway Co. (Tex. Sup.) 18 S. W. 493. The degree of care exacted of the owner in reference to its track would require that the bridges be so constructed as to permit the operation of ordinary cars through them in the usual way, and would not require that they be adapted to the passage of isolated cars of peculiar construction. By ordinary cars, however, is not meant simply those that are in most common use, but it includes those that have come into such general use upon the different railroads of the country that their presence in trains passing over the track should be anticipated in the regular conduct of the business. The owning company should not be excused by simply adapting its bridges for the use of the particular cars owned by it, because it is a matter of general knowledge, as well as made apparent by this record, that railway trains are seldom, if ever, composed entirely of cars belonging to the operating company, but are principally made up of those received from connecting lines. It would therefore seem to follow that as the trainmen are expected, in the daily discharge of their duties, to handle the cars of other companies, the owner of the road should use ordinary care to so construct it as to enable this to be done without unusual risk; and not only would its own employés, but also those of another company using the track with its permission, have the right to assume, in the absence of notice to the contrary, that this duty had been discharged. If, then, Moore was killed while in the discharge of his duties in the ordinary way, through negligence on the part of appellant in the construction of one of its bridges, his representatives would be entitled to recover, unless he was himself guilty of negligence which proximately contributed in causing his death. But if appellant constructed its bridge of sufficient height to permit of the operation of ordinary cars, as above defined, through it in the usual way, and Moore was killed by reason of his employers' (the receivers of the Missouri, Kansas & Texas) receiving into their train a car of peculiar construction and unusual height, and failing to give notice thereof to the brakeman, they, and not the appellant, would be liable therefor. This we understand to have been the view of the law entertained by the court below, and appellant's first, second, third, and fourth assignments of error, in so far as they conflict therewith, must be overruled.

The fifth paragraph of the court's charge was as follows: "If you find that it was one of the rules of the Missouri, Kansas & Texas Railway Company, or of the receivers thereof, that all persons were particularly cautioned against standing upright on the top of covered cars while passing through truss bridges or tunnels, and that said rule was known to said Jas. L. Moore, or could have been known to him by the exercise of ordinary care; and if you further find that said Moore knew of the location of the bridge mentioned in the petition, or could have known of it by the exercise of ordinary care, and if by his failure to observe said rule, when he knew, or by the exercise of ordinary care could have known, that said cars were passing, or were to pass, through said bridge, he contributed to his injury, or if his violation and disregard of said rule, if he did violate and disregard it, was the cause, in whole or in part, of his death, — then you will find for the defendant." And the second and fourth instructions requested by appellant, but refused by the court, were as follows: "Fourth. It is in proof that deceased, Jas. L. Moore, had been furnished with the rules and regulations of his employers, and that by one of said rules he was particularly cautioned against standing upright on covered cars while passing through truss bridges; and if you believe from the evidence that deceased, Jas. L. Moore, violated such rule, and disregarded defendant's precaution when passing through the bridge over Denton creek, and that such violation and disregard of the rule was the cause, in whole or in part, of his death, then you should find for the defendant. Second. Deceased, J. L. Moore, being at the time of his death an employé of the receivers of the M., K. & T. Ry. Co., it was his duty to comply with the rules of said company for his government in the discharge of his duties, and the rules of said employment, known to him, as shown by the undisputed evidence, prohibiting him from standing upon top of covered cars while passing through such bridges. Neither said Moore, if he had lived, nor his relatives, by reason of his death, can recover for an injury received by him while violating such rule which might have been avoided by complying with it." It will thus be seen that before the jury, by the charge given them, would have been authorized to find in favor of appellant, upon the ground that Moore's death was caused by his acting in violation of a rule of his employers, the evidence was required to show either that he had actual notice of the rule, or by the exercise of ordinary care on his part would have had notice of it; thus, in effect, imposing the burden upon appellant to show affirmatively these facts. It will also be observed that, even though they may have believed that Moore had full notice of the location and construction of this bridge, the jury would not have been authorized to find in favor of appellant under this charge, unless they also believed from the evidence that he had notice, or by the exercise of ordinary care on his part would have had notice, of the rule he was charged with violating. Appellant's entire defense under this rule was therefore, by the giving of this charge, and by the refusal of...