109 S.W. 112 | Tex. | 1908
Defendant in error, while in the service of plaintiff in error as brakeman, was hurt near Gibson in the Indian Territory on the 20th day of July, 1904, and afterwards brought this action and recovered the judgment now before us in Grayson County, Texas, for damages, on the ground that his injuries were caused by the negligence of the railway company. The evidence is sufficient to sustain his allegations that, in the proper discharge of his duties, he stood upon the step of the pilot of the engine drawing the train upon which he was acting as brakeman and, while riding there in order to be in readiness to throw a switch towards which the engine was moving, he was caused to slip from the step by reason of the facts, that, from use it had become slick and was inclined downward instead of upward as it should have done, from which causes it was defective *462 and dangerous for such uses; and also because the engine passed over a "low joint" in the track, negligently permitted by defendant to exist there, causing a jolt which helped to throw him off the step. There were also allegations and evidence that the engineer carelessly produced a jerk in the movement of the engine which may have caused or contributed to the occurrence, but the trial court in unmistakable language instructed the jury that there could be no recovery for the negligence of the engineer, for the reason that, under the law of the Indian Territory, he was a fellow servant of the plaintiff. The charge allowed a recovery only upon the ground of negligence of the company in failing to exercise ordinary care to keep the track and the step of the engine in a safe condition and in case such negligence proximately caused or concurred with that of the engineer in causing plaintiff to fall from the step.
The present complaint of the plaintiff in error is that there was error in some of the instructions of the trial court concerning the law of the Territory as to the relation between the plaintiff and those of its employes whose duty it was to see to the condition of the track and of the step of the engine, its contention being that by such law the plaintiff and such employes were fellow servants.
It is conceded that the question depends upon the common law, and it is not claimed that the courts of the Territory, or the Supreme Court of the United States, to which cases may go upon appellate proceedings from those courts, have determined the common law upon the question to be otherwise than it was declared to be by the decisions of this court rendered before the changes made by our recent statutes, but it is urged that certain decisions of the Supreme Court of Arkansas have so declared the common law as to make such employes as those in question fellow servants, and that the rule as thus declared had been made the law of the Territory by the Act of Congress of May 2, 1890, which put in force therein certain statutes of Arkansas, including one which, in general terms, had adopted for that State the common law of England.
We shall not pause to determine what would be the result were those decisions acknowledged to have been the law in the Indian Territory. We remark, however, that, while the decisions referred to may be admitted to differ in some particulars from those of this court, it is by no means clear that the points of difference are material to this case. (St. Louis, I.M. S. Ry. Co. v. Harper,
Pursuit of this line of inquiry would not, in our opinion, be the true way in which to reach a solution of the question in this case. The law which controls is that which existed in the Indian Territory, when the tort is alleged to have been committed, and not that of Arkansas. Any inquiry into the law of that State would be made only for the purpose of ascertaining the law of the Territory upon the assumption that the rules declared in the former constituted the law of the latter. Neither the law of Arkansas nor that of the *463 Territory has been proved, but it is insisted that, inasmuch as the law of the latter had been established by an Act of Congress, we should take judicial notice of it. If this is true, it is the law of the Territory of which such notice is to be taken, and we may ascertain that more directly than by inquiring into the law of Arkansas and assuming it to have been the same as that of the Territory.
We think it is true that we must take notice of the Act of Congress; and, as it adopted for the Territory certain chapters of Mansfield's Digest of the law of Arkansas, the effect was the same as if the provisions of those chapters had been originally adopted by Congress and were contained in the act passed by it. We therefore take notice of the provisions of Mansfield's Digest precisely as if they were provisions of the Act of Congress. This has been held by the Courts of Civil Appeals for many years and by this court in passing upon applications for writs of error. (Apollos v. Staniforth, 3 Texas Civ. App. 506[
In order that the decisions of the Federal Courts to which we shall refer may properly be understood, it is proper to state that the Act of Congress adopted for the Indian Territory much of the statute law of Arkansas contained in Mansfield's Digest. It also adopted chapter 20 of that Digest by which the common law of England was put in force in Arkansas.
In cases originating in the Indian Territory in which questions have arisen under the local statutory law thus imported from Arkansas, the Federal Courts have held that, as such questions depended upon the local statutes, construction put upon them by the Supreme Court of Arkansas in their application to such questions before their adoption for the Territory should control. (Robinson v. Belt,
Now, it is urged that, since the adoption of the statutes of Arkansas for the Indian Territory is held to have carried with them the settled construction which had been put upon them in the State, it should also be held that the adoption of the statute which put the common law in force in the State, should be held to have established in the Territory whatever the Supreme Court of Arkansas had declared the common law to be. But this does not follow. In declaring the common law the Supreme Court of Arkansas did not construe any statute. The provision in Mansfield's Digest merely put that system of law in force in Arkansas, leaving the courts to determine what its rules and principles are. Likewise the Act of Congress put the common law in force in the Indian Territory. No word of either statute is to be construed in determining any question depending on the common law. The decision is to be made outside the statute, for Arkansas by its own courts, for the Territory by the courts provided by Congress to declare the law therein. The argument, that because Congress referred to a statute of Arkansas which adopted the common law it adopted all the previously expressed views of the highest court in Arkansas as to what the common law was, overlooks the fact that when the common law is put in force in a State, or Territory, the courts therein are supposed to know its rules and principles equally with the courts of all other jurisdictions administering it. The Act of Congress is the same in its effect as if it had directly adopted the common law, as doubtless it would have done, with suitable modifications, but for the fact that it found it in force in Arkansas in connection with statutes, forming a body of laws deemed suitable for the Indian Territory. The local statutes of Arkansas were adopted with the meaning which had been held to attach to their words, but the common law was adopted upon the assumption that its rules and principles were equally known to all courts in this country. Courts were established in the Territory to enforce this system of law and what its rules upon any particular subject were neither the Act of Congress nor the statute of Arkansas attempted to define. All such questions were left to the courts. Neither statute attempts to fix the relation between the master and servant, nor those between co-employes. Questions arising out of those relations are general, determinable by the principles of the common law which the courts administering law in the Territory could determine for themselves. That this is true has often been held by the Supreme Court of the United States, which has applied to the cases before it, arising in the different States, its own views of the common law regulating questions arising out of the relations of co-employes *465
towards each other and towards their employer, even though its views differed from those of the highest court of the State where the case arose. (Hough v. T. P. Ry. Co.,
It follows that, as the ultimate determination of cases arising in the Indian Territory may be made by the Supreme Court of the United States, the rulings of that court as to what are the applicable rules of the common law are to be accepted as the highest evidence of the common law of the Territory. This is the view accepted by the Court of Appeals of the Territory as appears from its decision in Missouri, K. T. Ry. Co. v. Wilhoit, 98 S.W. Rep., 343-345. In that case the court thus stated and applied the decisions of the Supreme Court upon the question now before us: "In Union Pacific R.R. Co. v. Snyder (
From these sources, without resort to the decisions in Arkansas, we learn what the law of the Indian Territory was upon the question whether or not the section foreman and the employes in the roundhouse, to whom was delegated, respectively, the duty of seeing to the condition of the track and of the engine by reason of defects *466 in which plaintiff received his injuries, were fellow servants with plaintiff; and we find that law was that they were not.
If any of the rulings of the trial court of which complaint is made were erroneous, they were so by reason of being too favorable to the defendant, and of this it can not complain.
Affirmed.
