Galveston, Harrisburg & San Antonio Railway Co. v. Garteiser

FLY, Associate Justice. — This is a suit for personal injuries alleged to have been inflicted upon appellee by the railroad company, while the former was riding upon a hand-car in the course of his employment on the road. The judgment was for $7500. This is the second appeal, the decision on the former being reported in 2 Texas Civil Appeals, 234. Appellant pleaded general denial, and contributory negligence on the part of appellee. We find that the record will justify the following conclusion of facts: Appellee on the 25th day of March, 1887, was in the employ of one Heineman, who was an independent contractor to build fence for appellant along its line of railroad. That on the morning of March 25,1887, appellee, in company with his employer and other employes, was on board a hand-car on appellant’s railroad, proceeding to the place where work on the fence was being prosecuted. The hand-car on which Heine-man and his employes were riding was furnished by appellant to him in 1884, and he had authority to use the track with the hand-ear in going from point to point in the prosecution of his work. When the hand-car was on a bridge across Gerónimo Creek a train came suddenly upon them, and in order to save their lives Heineman and his employes left the hand-car, and in leaving the hand-car appellee fell from the bridge and received serious and permanent injuries, resulting in paralysis of the legs, damage to the spine, and total incapacity for labor. Appellee was earning $1.50 per day when injured, was 27 years old, and was strong and vigorous. Ho signals were given at the road crossing, a few hundred yards east of the bridge. When the train was first seen it was so close to the hand-car that appellee was com *460 pelled to leave it in order to save his life. Appellee had no notice of the approach of the train until he saw it. The train was not a regular one, but was an extra. It is urged, that the court erred in refusing to submit the question of a lease of its road by appellant to the Southern Pacific Company. This position is, however, not well taken. The lease of the road would in no manner affect the liability of its owner for any damages that might accrue to the public, whether committed through the negligence of the lessor or lessee. There being no statute in this State permitting it, a railroad can not by a lease evade any responsibility it may owe to the general public. Railway v. Morris, 68 Texas, 59; Railway v. Keuhn, 70 Texas, 582; Railway v. Eckford, 71 Texas, 274; Railway v. Lee, 71 Texas, 538. Appellee was not in the employ of either appellant or the Southern Pacific Company, but was working for one Heineman, an independent contractor, who was building a fence for appellant for a certain sum for each mile constructed. The relation of master and servant did not exist between appellee and appellant, and its duty to him was the same as though he was a member of the general public, and in nowise connected with it by employment. Rorer on Rys., p. 1205; Prince v. Railway, 64 Texas, 144; Railway v. Cock, 68 Texas, 713. Such being the case, the duty of the railway company was the same as that which it owed to any one else from the general public who had the right given him to use the track of the railroad. Appellee was not a trespasser upon the track, but under the authority given his employer to use the track in conveying his employes from one point to another, was rightfully on the hand-car. He would therefore occupy the same relation to the railroad company that any person would who was licensed or permitted to be on the track, and subject to the same rules as to contributory negligence. Appellee was in the discharge of his duty to his master at the time that the injury was inflicted, and was not standing in the relation of employe to the railroad company, and if not guilty of contributory negligence, was entitled to recover. Eason v. Railway, 65 Texas, 578; Receivers v. Eddy, 79 Texas, 540. The plaintiff was lawfully upon the hand-car at the time of the injury. The car itself was in the regular performance of its duty, and was making the trip in furtherance of a contract with the railroad company. The train was not a regular one, and without giving any signal, and at a high rate of speed, it passed the road crossing and collided with the car. Those on the hand-car had stopped before going on the bridge and listened for a train. Hone was heard. “Whilst the statutory signals to be given at road crossings are intended as warnings to persons upon the road or near the crossing, the failure to give them may be taken into consideration, together with other facts, to show want of reasonable care on the part of the company at to other parties lawfully upon the railway.” Railway v. Gray, 65 Texas, 32. The statute requires that proper signals shall be given by a train approach *461 ing a public crossing, and while the primary object and design of the statute was to protect persons and property at the crossings, the disregard of the statute may be weighed by the jury as a circumstance to show negligence, when an injury is inflicted by a train in such proximity to a crossing that the giving of the signals could have been heard by a person lawfully on the track. Railway v. Raiford (Ga.), 9 S. E. Rep., 169; Cahill v. Railway (Ky.), 18 S. W. Rep., 2. By the charge of the court, the liability of appellant is conditioned upon the facts that appellee was on the hand-car on the track with the knowledge and consent of appellant, and used due care and caution in discovering the approaching train and in leaving the hand-car, and that appellant was guilty of negligence in failing to give a signal of the approaching of the train at the road crossing, that such negligence was the direct and proximate cause of appellee’s injuries. Every phase of contributory negligence of which appellee might have been guilty was presented in the special charges asked by appellant and given by the court, and the jury was further instructed, that although appellant may have been guilty of negligence in failing to give the signal, yet if appellee was also guilty of negligence he could not recover. In fact, the liability of appellant is placed by the charge exactly as it desired it to be — that is, the same liability that it owed to any other member of the general public who was lawfully on the track. Complaint is made that this liability is not more fully presented by giving certain special charges, wherein it is reiterated that the liability of appellant to appellee was the same that it owed to the public, but the whole charge is based on that theory, and it was unnecessary to repeat it. Objection was made to the introduction of rules for the guidance of locomotive engineers in giving signals before entering covered bridges and during fogs, purporting to have been issued by the Southern Pacific Company. So far as the general public was concerned, the negligence of the lessee was the negligence of the lessor. Their admission was objected to upon the ground alone that they were issued by the Southern Pacific Company, and this objection is not tenable. It is complained that appellee was permitted to testify, that nearly every train that came by while he was working near the place of collision had given the signals at the road crossing, and that he had heard them. The testimony was admissible. If the company had been in the habit of obeying the law in giving signals, appellee had a right to conclude that it would continue to do-so. Railway v. Gray, 65 Texas, 32; Cahill v. Railway, 18 S. W. Rep., 2. We are of the opinion that it was not error to permit the appellee to testify, that he could have heard the whistle had it been sounded on the morning of the disaster. The object in admitting opinions is to throw light on some obscure point, a knowledge of which is known peculiarly to the witness, and whose effect can not be obtained by the jury in the absence of the opinion of the witness. Garteiser had told, that he had worked for some time near the bridge; that he had seen *462 many trains pass, and heard the whistle many times as it sounded near the road crossing- as distinctly as though he had been close to it; that he was hurt on a foggy morning, and that sound could be heard better on a foggy morning than on a clear, dry one; and that he did not hear the bell or whistle on the morning of the accident. After these facts had been stated to the jury, appellee stated, that he could have heard the whistle had it been sounded or the bell had it been rung. As a general rule, the opinions of witnesses are inadmissible in evidence. Facts should be stated, and not inferences, opinions, or conclusions deducidle from the facts. There are, however, exceptions to this general rule. Cases arise where it is a matter of impossibility to so detail the facts as to produce the impression on the minds of the jury that it was legitimately produced on the mind of the witness by the facts, so the admission of opinions of witnesses, whether experts or those who show an acquaintance with the subject by a detail of facts on which their opinions are based, are justified as evidence by the law of necessity. Garteiser had shown himself familiar with the locality, and was in a position to give an opinion as to whether the whistle or bell could be heard, as he had heard it many times at the same distance, under more unfavorable circumstances. In a similar case, the Supreme Court of Kansas held that a witness could testify that he would have heard a whistle had it been sounded. Railway v. Miller, 39 Kas., 419. In the case of Railway v. Duelm, 23 Southwestern Reporter, 596, this court held, that the opinions of witnesses, that they-would have heard the whistle had it been sounded, was proper testimony. The witness Schrader swore positively that he was near the road crossing, and that no bell was rung or whistle sounded. This is objected to as an opinion, but it was not an opinion, but testimony to an absolute fact. Witness Koch was asked by appellant the following cross-interrogatory: “In order to recover against the railway company in a case like this, have you understood or been told that it was necessary to prove that no whistle was blown or bell rung, or that the party injured or some one with him must have stopped and looked for an approaching train of cars and listened, and did not hear any train, whistle, or bell ring?” To this cross-interrogatory the witness answered, “I never was posted to swear in favor of A. Garteiser, so that he might recover damages.” The answer was objected to by appellant, as not responsive to the question. The answer was not as direct as it might have been, but had it remained in evidence could not have been of injury to appellant. It was at once withdrawn from the consideration of the jury, and we are of the opinion that there is no merit in the contention that admission of the answer was reversible error. It is contended by appellant that appellee should not have been permitted to testify, that no notice was given to the men on the hand-car of the fact that a special would pass on the morning of the accident. Appellant *463 introduced this issue through the depositions of its witness Heineman, who swore that the track walker told him, in the presence of appellee, that he thought he heard an approaching train, and appellee should have been permitted to swear that he'did not hear such notice given. Again, if the evidence had been improper, appellant permitted another witness, unchallenged, to swear to the same fact. Stephens, a witness for appellant, testified about a rule of the company, and was asked by appellee if he could get a copy of the rules by the next morning, to which he testified, in substance, that he could not do it, and did not think it was his business. The questions and answers were objected to as improper, irrelevant, and immaterial, and because it was not shown that the rules were in possession of the witness, and no notice had been served on appellant to produce the rules, and the evidence was calculated to prejudice the cause of appellant. The witness had testified that the rules were only given to employes, and that he was an employe, and there was no impropriety in asking him if he could or would get a copy of the rules. The rules were afterwards introduced in evidence. It was shown by appellant that instructions had been given to Heineman, who was in charge of the gang on the hand-car, to always send out flagmen when crossing bridges on foggy mornings, and George Lagenfeldt, one of the men on the hand-car, was allowed to testify that he never complied with this rule, and appellant objected to it, because it was not shown that the violation of the rules was known to appellant. The customary violation of rules may be shown to fix or defeat the liability of the company. Wood’s Mast, and Serv., sec. 401. The evidence does not show that instructions given to Heineman were ever made known to appellee. The second clause of the charge is not subject to the criticism made by appellant. The different circumstances relied on as evidencing.negligence are mentioned in the clause referred to, and the jury are instructed that if they find the circumstances were proved, and that they evidence negligence, then they should find for appellee. The testimony for appellee showed that the train was running at a high rate of speed, that it was a foggy morning, and that there was a failure to blow the whistle or ring the bell at the road crossing, and this testimony justified the charge. The care required of appellee, riding in the prosecution of his work on a hand-car, is such as any ordinarily prudent man would exercise under like circumstances. We know of no rule of law that required of appellee the exercise of the highest degree of care that a person under the circumstances could exercise. The degree of care imposed by the charge was all that could be required. The evidence shows that appellee was authorized in prosecuting bis employment to go from point to point on a handcar, which had been placed in charge of his employer for that purpose. It became necessary, to properly perform the labor that he was employed to do, that he should be transported to his work oh the car. The rule laid down in Railway v. Lee, 70 Texas, 496, is the one ap *464 plied by the court, and was the proper one. See also Railway v. Smith (Texas Sup.), 28 S. W. Rep., 520. Heineman, the “boss” of the gang of which appellee was a member, had some eighteen months before the disaster been instructed, in foggy weather or in approaching sharp curves and obscure places on his hand-car, to send out a flagman to avoid collisions, and appellant asked a charge instructing the jury, that if Heineman had disobeyed the directions given him, or had received notice of the approach of the train, and negligently went upon the bridge, that his negligence would be imputed to appellee. We have seen no authority supporting the instructions requested. On the other hand it has been held, that “the negligence of a superior is not attributable to an inferior working under his control, although the inferior participate in the act, if he does, so by order of such superior; and therefore such negligence can not be charged upon the inferior as contributory negligence so as to defeat him in an action brought for injuries occasioned by such act of negligence.” Hoben v. Railway, 20 Iowa, 562. In the Iowa case, several employes were operating a hand-car under control of a “boss,” and in the course of the employment one of them was injured by reason of the negligence of the boss, and it was held that the negligence of the boss could not be imputed to the employe. We are of the opinion that this is the correct doctrine. The charge of the court is full and fair, and, in connection with the special charges given, submits the question of the negligence of appellant and the contributory negligence of appellee to the jury. The evidence is sufficient to sustain the verdict. The former opinion of this court is withdrawn, and the judgment is affirmed. Affirmed. Delivered January 16, 1895.