QUILL v. H. T.C. RY. CO

Citation Codes

Equivalent Citations

citation codes

Docket Number

No. 921.

Judges

F. A. Williams

See more information ...

Smart Summary

Please sign up to generate summary.

MRS. KATE QUILL ET AL. v. HOUSTON TEXAS CENTRAL RAILWAY COMPANY.

A.H. Willie Sons and O.T. Holt, for plaintiffs in error. — The issues as to the negligence of the defendant, the contributory negligence of the deceased, James Quill, and the assumption of the dangers of the employment, were questions of fact to be decided by the jury, and were, under proper instructions of the court, resolved in favor of plaintiffs, in accordance with the preponderance of the evidence, and can not be the subject of review on appeal to this court. Hall v. Hodge, 2 Tex. 328; Miller v. Schmullen, 37 Tex. 239 [ 37 Tex. 239]; Legg v. McNeill, 2 Tex. 432; Cotton v. Campbell, 3 Tex. 495; Warren v. Shuman, 5 Tex. 441; Montgomery v. Culton, 23 Tex. 156 [ 23 Tex. 156]; Telegraph Co. v. Jones, 81 Tex. 274 [ 81 Tex. 274]; Flanagan v. Oberthier, 50 Tex. 382 [ 50 Tex. 382]; Owens v. Railway, 67 Tex. 681; Harris County v. Campbell, 68 Tex. 26; Edrington v. Kiger, 4 Tex. 93; Gaunce v. Railway, 48 S.W. Rep., 524; McGee v. Railway, 78 Cal. 430.

It was the statutory duty of appellant to inclose its track with a suitable fence, and to keep it in repair for the protection of its employes. Rev. Stats., art. 4528; Railway v. Rowland, 70 Tex. 298; Railway v. Childress, 64 Tex. 346; Railway v. Young, 60 Tex. 201 [ 60 Tex. 201]; Briggs v. Railway, 111 Mo., 173; Donnegan v. Erhardt, 119 N.Y. 468; Quackenbush v. Railway, 62 Wis. 411; Trice v. Railway, 49 Mo., 438; Railway v. Crider, 19 S.W. Rep., 618, Thorpe v. Railway, 27 Vt. 140; Railway v. Humes, 115 U.S. 512; Railway v. Beckwith, 129 U.S. 26.

Independently of any statute, it is a duty imposed by the common law upon a railroad corporation to inclose its track with a proper fence, and to exercise reasonable care to maintain it in a safe condition for the benefit of employes on its trains. Railway v. Wilson, 79 Tex. 371; Eames v. Railway, 63 Tex. 660 [ 63 Tex. 660]; Railway v. Vallie, 60 Tex. 481 [ 60 Tex. 481]; Railway v. Delahunty, 53 Tex. 206 [ 53 Tex. 206]; Railway v. Scott, 64 Tex. 549; Railway v. Oram, 49 Tex. 341; Railway v. Silliphant, 70 Tex. 623; Railway v. Lempe, 59 Tex. 19; Railway v. Hohn, 21 S.W. Rep., 942; Dickson v. Railway, 27 S.W. Rep., 476; Railway v. Beckwith, 129 U.S. 26; Bishop Non-Con. Law, sec. 691; Wood's Master and Servant, secs. 326, 329, 330, 352, 359; Railway v. Swett, 45 Ill. 201.

Independently of the nature of the duties required of railway companies by the common law and statutes, where the fence is actually constructed it was negligence to permit it to become out of repair so that stock could enter upon the track, for which an employe injured in consequence of such omission may recover. Quill v. Railway, 46 S.W. Rep., 847; Hall v. Railway, 35 S.W. Rep., 321, 322; Railway v. Keegan, 87 Fed. Rep., 849; McGee v. Railway, 78 Cal. 430.

The defendant having fenced its right of way and track, was charged with the duty of exercising ordinary care to keep the fence in a reasonably safe condition for the use if its employes.

The burden of proof was upon the defendant in error to show actual or presumptive knowledge on the part of Quill of the negligence referred to, and not upon the plaintiff in error to show want of such knowledge, and, under the very plainest rules of law, unless the testimony introduced upon the trial clearly, distinctly, and conclusively showed that Quill knew that defendant in error's fence was defective, and that cattle were getting within the inclosure, or by the exercise of reasonable care he could have known the same, or unless the testimony was such as that reasonable men, of which a jury is supposed to be composed, could not draw any other inference or come to different conclusions, the defendant in error has not established the fact that Quill was charged with a knowledge of the facts imputed to him. 14 Am. and Eng. Enc. of Law, 844. The testimony on this subject showed nothing more than that the witnesses testifying themselves knew of the defect in the fence and the presence of cattle in the inclosure, and could not possibly have been any evidence of what Quill himself knew about the matter, placed in an entirely different position as he was.

According to the authorities, an employe would not be presumed to know a risk which is not patent or obvious, beyond that he has a right to assume, without inquiry or investigation, that his employer has discharged his duty of furnishing him with safe and proper instruments, appliances, and surroundings. 75 Tex. 61. The case of Railway v. McNamara, 59 Tex. 255, is unquestionably an adjudication of the question in accordance with our contention. Accordingly as it was no part of the duty of Quill to inspect or know the condition of the fence, as we have observed, he was not chargeable with presumptive knowledge of a defect in the fence. The importance of the decision referred to consists in showing that whereas the question was submitted to the jury as to whether or not Quill had knowledge of the defect in the fence, it would not have been improper for the court to have held, as a matter of law, that he had no such knowledge, as the defendant in that case complained of the refusal of the court to give such a charge, and the Supreme Court approved such refusal. Railway v. Keegan, 87 Fed. Rep., 853; Vance v. Saathoff, 2 Texas U.C., 658; Russell v. Mason, 8 Tex. 228; 19 Tex. 101 [ 19 Tex. 101]; 23 Tex. 641; 24 Tex. 288 [ 24 Tex. 288]; 5 Tex. 496; 2 Tex. 248 [ 2 Tex. 248]; 2 Tex. 322, 499; Stroud v. Springfield, 28 Tex. 676; Tuttle v. Turner, 28 Tex. 775; Owens v. State, 35 Tex. 362 [ 35 Tex. 362]; Latham v. Selkirk, 11 Tex. 321 [ 11 Tex. 321]; Toohig v. Elliott, 2 Texas U.C., 643.

Conceding for argument's sake the fact that cattle frequently got within the defendant in error's inclosed right of way, and that Quill had full knowledge thereof, to do which, however, the testimony of the several witnesses referred to must be disregarded, Quill was not thereby put upon notice of the defect in the fence or the presence of any cattle upon the right of way resulting therefrom, nor did he on that account assume the risk. This is precisely what is decided in the case of Fordyce v. Culver, 22 Southwestern Reporter, 237. We are free to say that the general rule announced by the Texas decisions is to the effect that if an employe has knowledge of the negligence of his employer, or by the due exercise of care and diligence he might know the same, he assumes the risk of such negligence. This rule, however, has been so often modified that it practically ceases to be any rule at all, and each case coming up for adjudication must be decided according to its peculiar facts and circumstances. This statement of the law is fully borne out by the case of Railway v. Lempe, 59 Tex. 19. The case at bar is further distinguished from the general rule by the case of Railway v. Brentford, 79 Tex. 619.

Not only the Texas decisions but the great weight of authority supports our contention. In the leading case of Patterson v. Railway, 76 Pennsylvania State, 389, which the case of Railway v. Lempe expressly adopts as the rule of this State, it is held that "mere knowledge of a defect will not defeat recovery. Negligence on the part of the servant does not necessarily arise from his knowledge of a defect, but it is a question of fact to be determined from such knowledge and other circumstances in evidence." Thorpe v. Railway, 2 S.W. Rep., 3; Hamilton v. Mining Co., 18 S.W. Rep., 977; Railway v. Reesman, 60 Fed. Rep., 370; Railway v. Childress, 64 Tex. 348; Railway v. Rowland, 70 Tex. 306.

Baker, Botts, Baker Lovett and Frank Andrews, for defendant in error. — The railroad company in this case having fenced its track, but, without regard to such fencing, cattle and other stock being frequently found upon the same, which fact was known to the deceased, he assumed the risk of his locomotive coming in contact with cattle upon defendant's road and the result of injury therefrom as a risk or danger incident to the operation of his locomotive, and the injury having resulted in his death, appellees are not entitled to recover. Railway v. Martin, 51 S.W. Rep., 641; Railway v. French, 86 Tex. 96; Railway v. Smithson, 45 Mich. 212; Railway v. Tarver, 72 Tex. 312; Railway v. Crowder, 63 Tex. 503; Railway v. Bradford, 66 Tex. 734 [ 66 Tex. 734]; Rogers v. City Railway, 76 Tex. 506 [ 76 Tex. 506]; Railway v. Hester, 64 Tex. 403 [ 64 Tex. 403]; Watson v. Railway, 58 Tex. 439 [ 58 Tex. 439]; Railway v. Fowler, 56 Tex. 460 [ 56 Tex. 460]; Railway v. Dillard, 70 Tex. 63; Pearce on Railroads, 372; Thompson on Negligence, 1008; Wood on Master and Servant, sec. 326; Railway v. Conrad, 62 Tex. 628 [ 62 Tex. 628]; Railway v. McNamara, 59 Tex. 258 [ 59 Tex. 258]; Railway v. Lemon, 83 Tex. 146; Railway v. Hester, 72 Tex. 40; Bonnet v. Railway, 31 S.W. Rep., 525; Jones v. Railway, 31 S.W. Rep., 706; Manson v. Eddy, 22 S.W. Rep., 66; Johnson v. Railway, 30 S.W. Rep., 95.

A risk ordinarily incident to the business of railroad employment is not one which necessarily often or frequently occurs, but is one which, though infrequently occurring, is liable to happen in the course of the employment. Railway v. Lempe, 59 Tex. 22; Railway v. Bradford, 66 Tex. 736 [ 66 Tex. 736]; Railway v. Williams, 72 Tex. 164 [ 72 Tex. 164]; Railway v. French, 86 Tex. 96; Railway v. Martin, 51 S.W. Rep., 641.

Where the only reasonable legal conclusion which can be drawn from the undisputed evidence shows that the facts will not sustain a judgment, a verdict should be instructed.

1. Master and Servant — Negligence — Railway — Fences — Approval Limited.

The reversal of judgment by the Court of Civil Appeals in this case approved on the ground that the servant assumed the risk, without passing on the question whether a railway company may be held liable, for negligence in failing to keep up a fence once erected, to an employe injured by running over stock. (Pp. 621, 622.)

2. Master and Servant — Assumed Risk — Fences.

A locomotive engineer who knows that the railway fences are defective and cattle frequently found on the track, assumes the risk of injury from derailment by running over them. (Pp. 616-618, 621.)

3. Same — Question of Law.

See evidence held to present a case in which, as matter of law, such knowledge was shown as charged the servant with an assumption of risk. (Pp. 617, 618.)

WILLIAMS, ASSOCIATE JUSTICE.

This writ of error was granted upon the allegation that the decision of the Court of Civil Appeals, reversing the judgment of the District Court and remanding the cause, practically settled the case, and the only questions for us to examine are whether or not such is the effect of the decision, and, if so, whether or not it is correct. The opinion of the Court of Civil Appeals holds that "the evidence has shown beyond question" that the deceased, James Quill, had assumed the risk from which his death resulted, and that it "destroys the case made out by appellees." We think the holding clearly settled the case made by the evidence before the court and the effect of the application for writ of error is to admit that appellees can not change the evidence upon another trial.

Having carefully examined the statement of facts, we are also of the opinion that the uncontroverted evidence justified the decision of the Court of Civil Appeals. That court held that the failure of the railroad company to keep its fences in such condition as to prevent access of stock to its track constituted such negligence as would have entitled appellees to recover had the evidence not shown also that deceased knew that stock was in fact commonly upon the road, and assumed the resulting risk by continuing in the service. Whether or not the defective condition of the fences would have been a ground for recovery by an employe, in the absence of the assumption of the risk, we are not called upon to decide. Assuming that it would, the other proposition is also necessarily true, and the evidence established beyond doubt the fact upon which it depended. It is unnecessary that we add anything to the discussion of that proposition by the Court of Civil Appeals.

The judgment of that court, reversing that of the District Court, will be affirmed and judgment will be here rendered that plaintiffs below take nothing, etc.

Rulings of Court of Civil Appeals affirmed and judgment rendered.

MRS. KATE QUILL ET AL. v. HOUSTON TEXAS CENTRAL RAILWAY COMPANY.

Comments