Texas & P. Ry. Co. v. Webb

• Decision Date: 23 December 1908
• Parties: TEXAS & P. RY. CO. v. WEBB.
• Court: Texas Supreme Court

114 S.W. 1171

TEXAS & P. RY. CO. v. WEBB.

Supreme Court of Texas.

December 23, 1908.

Error from Court of Civil Appeals of Second Supreme Judicial District.

Action by P. W. Webb against the Texas & Pacific Railway Company. Judgment for plaintiff, affirmed by the Court of Civil Appeals. 114 S. W. 1170. Defendant brings error. Affirmed.

W. L. Hall and Earl Conner, for plaintiff in error. Scott & Brelsford, for defendant in error.

WILLIAMS, J.

A horse of defendant in error entered the right of way of the plaintiff in error, and received injuries, it is claimed, by being struck by its engine or cars in a precinct in Eastland county, where the provisions of the act of 1899 (Laws 26th Leg. p. 220, c. 128), as amended by the act of 1903 (Laws 28th Leg. p. 97, c. 71), and further amended by the Act of 1905 (Laws 29th Leg. p. 226, c. 117), had been put in force prohibiting the running at large of horses, etc. The right of way was fenced, and the fence was in good condition, except that a gate in it had been left open. Why the gate was kept there is not shown, except that it was for a neighborhood road, traveled by people crossing the right of way and track. The crossing was not upon a public road, and it is not shown that it was at a place where the company was required to keep one. This action was brought in a justice's court to recover the value of the animal, was appealed to the county court, and, upon its judgment in favor of defendant in error, was carried to the Court of Civil Appeals, where the judgment was affirmed. The judgment of affirmance is final, and this court has no jurisdiction to review it, unless it is true, as claimed by plaintiff in error, that the case involves the validity of a statute. Rev. St. 1895, arts. 940, 996.

The statute the validity of which is said to be involved is the act of 1905, last above mentioned. The two first-named statutes provided for the putting in force, in counties named therein, by vote of the people, their provisions intended to prohibit the running at large of horses, mules, etc. The last amendment, the one in question, merely added a section, by which it was provided: "Sec. 20a. Each and every railroad company, having a line of railway in any county or subdivision thereof, where the provisions of the preceding sections of this chapter have been or may hereafter be adopted, shall be liable to the owner for the value of all stock killed or injured by the locomotives and cars of such railroad company in running over their respective railways, which may be recovered by suit before any court having competent jurisdiction of the amount. If the railroad company shall fence its road it shall only then be held liable in cases of injury resulting from want of ordinary care." This provision is, in substance, the same as that of article 4528, Rev. St. 1895, and doubtless was adopted because of questions that had arisen as to the effect upon that article of the adoption of the stock laws. It seems to be the view of counsel for plaintiff in error, and there may be holdings of some of the Courts of Civil Appeals tending to sustain it, that without the amendment in question the stock law, when put in force, would supersede or displace the rule declared by article 4528, so that railroad companies, whose roads are unfenced, or insufficiently fenced, would no longer be under the absolute liability declared by that article. We do not agree to so broad a proposition. Our views on the question are indicated in the discussion of the case of Missouri, Kansas & Texas Railway Co. v. Tolbert, 100 Tex. 486, 101 S. W. 206. While the stock law is intended to require owners to confine animals, the running at large of which is prohibited, and one who permits them to run at large violates the law, it is true, nevertheless, that such animals may often escape without fault on the part of their owners, when the latter will be guilty of no offense against the law. There would therefore be no necessary conflict between article 4528 and the inhibitions of the stock law without the amendment in question. The former would still operate for the benefit of one in a position to take advantage of it. The stock law, before the amendment of 1905, contained no provision by force of which article 4528 must be held to be superseded. There are inhibitions the failure to observe which may constitute a violation which will prevent the guilty person from being heard to complain in the courts of injuries to which his own wrongs have contributed, and this might enable a railroad company, whose tracks are unfenced, or insufficiently fenced, to defeat such a person. But we cannot see how the stock law could so operate against one guilty of no violation of it; and, as before shown, the mere fact that an animal is at large is not necessarily a violation. The amendment of 1905 changes the pre-existing law, not indeed to the extent claimed, but so as to abrogate the rule which we have just stated, and to make railroad companies liable in all cases where their roads are not fenced, thereby taking away a defense which plaintiff in error might have urged, if the defendant in error was a violator of the law in permitting his horse to be at large. In this way only may the validity of the statute be said to be involved. The attack made upon it is that its title expresses two subjects, which are claimed to be the amendment of stock laws and the regulation of the liability of railroad companies. The...