Gulf, Colorado & Santa Fe Railway Co. v. Chenault

Court of Appeals of Texas

Gulf, Colorado & Santa Fe Railway Co. v. Chenault

72 S.W. 868, 31 Tex. Civ. App. 558, 1903 Tex. App. LEXIS 123

CourtCourt of Appeals of Texas

DecidedMarch 7, 1903

StatusPublished

Cited by7 cases

This text of 72 S.W. 868 (Gulf, Colorado & Santa Fe Railway Co. v. Chenault) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Gulf, Colorado & Santa Fe Railway Co. v. Chenault, 72 S.W. 868, 31 Tex. Civ. App. 558, 1903 Tex. App. LEXIS 123 (Tex. Ct. App. 1903).

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Opinion

RAIHEY, Chief Justice.

Appellee sued below to recover damages on account of a nuisance. The facts are that a cattle train on defendant’s road was wrecked at the town of Garland, killing eighteen head of cattle. William Charles, defendant’s roadmaster, contracted with one Phillips, a butcher, to remove the cattle to his (Phillips’) pasture, some two or three miles distant from Garland, he assuring Charles that it was far enough away not to bother any one. Phillips was to receive, for moving the cattle, the hides thereof. The cattle were hauled to said pasture, and where placed were near enough to plaintiff’s premises to create, and did become, a nuisance to plaintiff and his family. Plaintiff notified defendant’s agent at Garland of the nuisance. Word was communicated to the roadmaster at Cleburne by letter, and he came up next day, and as soon as he could secure men he had the cattle burned on the day after.

The contention of appellant is, that Phillips was an independent contractor, and having undertaken to place the carcasses where they would not create a nuisance, appellant is not liable. Under the facts in this case it is immaterial in what capacity Phillips acted, whether as an independent contractor or as agent or servant of appellant. It was due the public by appellant to dispose of the carcasses so as to prevent a nuisance, and this duty could not be delegated to some one else, and appellant thereby escape liability. It was responsible for the acts of Phillips in failing to properly dispose of them. Railway Co. v. Meador, 50 Texas, 77 ; Railway Co. v. Warren, 88 Texas, 648 ; 3 Elliott, Railroads, sec. 1063.

The evidence is sufficient to support the judgment, and it is affirmed.

Affirmed.

*559 ON MOTION FOE ADDITIONAL CONCLUSIONS OF FACT.

At the request of appellant we find the following additional facts, viz:

1. Defendant exercised ordinary care in selecting E. J. Phillips as a suitable person with whom to contract for the removal of the carcasses.

2. Phillips employed his own means and facilities in removing the carcasses from defendant’s right of way near Garland to his pasture remote from said right of way. He was an independent contractor, provided it was possible as a matter of law for the defendant railway company to create such a relation in the disposition of said cattle.

Writ of error refused.

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RAIHEY, Chief Justice.

Appellee sued below to recover damages on account of a nuisance. The facts are that a cattle train on defendant’s road was wrecked at the town of Garland, killing eighteen head of cattle. William Charles, defendant’s roadmaster, contracted with one Phillips, a butcher, to remove the cattle to his (Phillips’) pasture, some two or three miles distant from Garland, he assuring Charles that it was far enough away not to bother any one. Phillips was to receive, for moving the cattle, the hides thereof. The cattle were hauled to said pasture, and where placed were near enough to plaintiff’s premises to create, and did become, a nuisance to plaintiff and his family. Plaintiff notified defendant’s agent at Garland of the nuisance. Word was communicated to the roadmaster at Cleburne by letter, and he came up next day, and as soon as he could secure men he had the cattle burned on the day after.

The contention of appellant is, that Phillips was an independent contractor, and having undertaken to place the carcasses where they would not create a nuisance, appellant is not liable. Under the facts in this case it is immaterial in what capacity Phillips acted, whether as an independent contractor or as agent or servant of appellant. It was due the public by appellant to dispose of the carcasses so as to prevent a nuisance, and this duty could not be delegated to some one else, and appellant thereby escape liability. It was responsible for the acts of Phillips in failing to properly dispose of them. Railway Co. v. Meador, 50 Texas, 77 ; Railway Co. v. Warren, 88 Texas, 648 ; 3 Elliott, Railroads, sec. 1063.

The evidence is sufficient to support the judgment, and it is affirmed.

Affirmed.

*559 ON MOTION FOE ADDITIONAL CONCLUSIONS OF FACT.

At the request of appellant we find the following additional facts, viz:

1. Defendant exercised ordinary care in selecting E. J. Phillips as a suitable person with whom to contract for the removal of the carcasses.

2. Phillips employed his own means and facilities in removing the carcasses from defendant’s right of way near Garland to his pasture remote from said right of way. He was an independent contractor, provided it was possible as a matter of law for the defendant railway company to create such a relation in the disposition of said cattle.

Writ of error refused.

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72 S.W. 868, 31 Tex. Civ. App. 558, 1903 Tex. App. LEXIS 123, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gulf-colorado-santa-fe-railway-co-v-chenault-texapp-1903.

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