28 S.W. 548 | Tex. App. | 1894
Lead Opinion
This is a suit brought by the surviving wife and child of Horace Daniels, who was killed by the collapse of a bridge over which he, as engineer, was propelling a locomotive and freight train. The case turns upon the question of the proper care upon the part of appellant in constructing and maintaining the bridge. This is a second appeal of the case, the first being reported in 1 Texas Civil Appeals, 695.
We will consider the assignments of error in the order presented in the brief. In the fifth, sixth, eighteenth, nineteenth, twentieth, twenty-third, twenty-fourth, and twenty fifth assignments of error, it is contended that the court erred in failing and refusing to present the issue, that if the railroad belonging to appellant was at the time of the death of Horace Daniels leased to the Southern Pacific Company, and said Horace Daniels was killed while in the employ of the said lessee, then appellant would not be liable in damages for the death of said employe occurring in the course of his employment by the lessee. Several special charges embodying this theory were asked by appellant, and were refused. The statement of the issues made by the district judge in the charge is as full as the statement made in the answer by appellant, and this it would seem is as much as should be demanded by the pleader. The damages in this case are alleged to have arisen by reason of the improper and faulty construction of a certain bridge, which was alleged to be defective both as to materials and foundation. This allegation throws the responsibility directly upon the owner of the road, whose duty it is to properly construct its road, bridges, etc., and to use proper care in keeping the same in good repair. It is the well settled doctrine in this State, that a railroad company can not evade its responsibilities to the public by leasing its road to another. Railway v. Underwood,
There was no written evidence of the lease, and the witnesses who testified to the fact of a lease did not testify that the duty of keeping the road and bridge in repair devolved upon the lessee, even if that fact could in any manner have lessened the responsibility of the owner of the road. The duty, however, no matter what the terms of the lease may have been, of keeping the road in repair devolved upon the appellant, and there was no error in refusing the requested charges. F.B. Barber, a witness for appellees, was permitted to testify, that he experienced frequent heavy rains in the canyon or gulch over which the bridge that fell was built, and one that might be called a freshet; which testimony was objected to, because the witness had sworn that he never knew the canyon until about three years after the wreck. The introduction of this testimony can be justified perhaps upon the ground set out in a decision of the Supreme Court of Texas in the case of Railway v. Holliday,
Whether the witness had qualified himself to testify as to the particular matter is a question to be determined by the trial court, and its action will not be reviewed unless a gross abuse of the discretion is made to appear. Man. Co. v. Phelps,
The eighth assignment complains of the following clause in the charge of the court:
"If you believe from the evidence that the bridge number 544 was defective and unsafe from its make and construction, or from want of repair had become defective and unsafe, and in consequence Horace Daniels was injured, and the defendant knew or by the exercise of reasonable care and diligence might have known of such defect, then the defendant corporation would be guilty of negligence, and if from the evidence you believe the said Horace Daniels was at the time exercising ordinary care and prudence in the performance of his duty as an engineer on defendant's road, and as its employe, then, and in such a contingency, the defendant corporation is liable to the plaintiff for such damage as the proof shows she and her daughter, Nellie Daniels, and the said Mrs. M.A. Foster, are entitled to recover for the death of the said Horace Daniels. If you find a verdict in favor of the plaintiff, you will state specifically the amount each one shall receive." *260
This charge is error under the rule prescribed by the appellate courts of this State condemning instructions of trial courts in which the facts are grouped, and the effects of their finding declared to be negligence. Railway v. Long, 23 S.W. Rep., 499; Railway v. Briggs, 23 S.W. Rep., 503; Railway v. Lee,
Negligence is a fact like any other to be found from the facts by the jury, and under the Texas system, where juries are made the exclusive judges of the weight of the testimony, any invasion of their prerogatives is looked upon with a jealous eye by appellate courts, and has been invariably condemned by them. Whenever the point as to negligence is contested, it is the unbroken rule to demand that the facts constituting the negligence not only must be submitted for the finding of the jury, but whether the facts constitute negligence must also be submitted for their determination. In the case of Railway v. Hill,
In the case of Stooksbury v. Swan,
This question has been so often and so exhaustively treated by the Supreme Court and by this court, that it becomes unnecessary to discuss it further.
The eighth paragraph of the charge, when taken with the paragraphs immediately preceding it, is not erroneous. We are of the opinion that there is but the one error in the record, which has been pointed out, and for that error alone the judgment is reversed and the cause remanded.
Reversed and remanded.
Addendum
We have thoroughly reinvestigated this case, in deference to the motion for rehearing, and we are convinced that a proper disposition has been made of this case. There is no statute in Texas requiring a railroad company to build safe bridges and keep the same in safe condition, and the duty of using ordinary care in the construction of bridges, roads, etc., arises from the charter given by the State. An act to be negligent per se must be done contrary to statutory duty, or must be so palpably in disregard of common prudence that a court would not hesitate to say that it constituted negligence. Railway v. Gasscamp,
"14. Even if the jury believe from the evidence that said bridge number 544 was defective in its original construction, yet if the jury believe from the evidence that defendant in the original construction of said bridge used ordinary care to see that said bridge was so constructed as to be reasonably safe for the purposes for which it was intended, and if they further believe from the evidence, that after its construction the defendant had employed careful and competent inspectors, and that such inspectors did exercise ordinary care in inspecting such bridge, and did exercise ordinary care to see that such bridge was kept in reasonably safe condition for the purposes for which it was intended, then you will find for defendant."
This charge should have been given. We are of the opinion, also, that special charges numbers 2, 5, 7, and 8, requested by appellee, were erroneous and should not have been given. The duty required of appellant in constructing and keeping its bridges in repair is more onerous than is required of it by law. The requested charges require safe structures, and not the exercise of care to secure safe structures. In the eighth requested charge the liability of appellant is made to depend upon its failure "to construct its road and bridge properly, and with proper foundation to withstand" rains and freshets.
The motion for rehearing is overruled.
Motion overruled.