Walker, Associate Justice.
This is an appeal from a judgment in favor of Elizabeth Hill, widow of David Hill, and their five minor, children, against appellants, for causing the death of said David Hill by the gross negligence of the servants of appellants
The petition alleges the death October 29, 1885, at the railroad crossing of a public county road, one and one-half miles east of Clarksville, by being thrown from his loaded wagon through the alleged defects in the crossing, and from fright of his team of horses at a pile of cross ties on the west and a hand car, on the east side of a public road, and near the railroad track, and so close together that there was barely room for the passage of. vehicles. The obstacles were on the right of way both of the railroad and of the county road.
Defendants pleaded not guilty and contributory negligence. The testimony failed to prove the allegations as to the actual crossing as out of repair. The charge of the court was directed to the case as made by the' presence of the obstacles and their effect. The decased fell from a bale of cotton in the wagon on which he was riding, from seventy-five to one hundred and fiftv yards from the crossing, his horses being in a gallop when he fell.'
Upon such testimony it is held that there was no material variance between the allegations and proof. Plaintiffs only failed in proof of some of their allegations.
The second assignment of error attacks the charge of the court and the refusal of certain charges asked, “holding defendants liable if the death was caused by the negligence of defendants’ subordinate employes, though the negligence was not that of the defendants, and though the negligence of the employes was not gross, but ordinary negligence only.”
The parts of the charge of the court upon negligence are here given: “In order to find for the plaintiffs * * * you must be satisfied by preponderance in the evidence that all of the following propositions are true:” * * *
“2. That David Hill is dead, and that his death was caused by the negligence of the defendants in placing a pile of railroad ties or a hand car, or both of such objects, so near to the public [457]*457•county road as to frighten horses and teams of persons traveling on such road, and that the same was calculated to have that effect.” * * *
“5. That a person of common prudence and caution in a like business as the defendants would not, under ordinary circumstances, have left the ties or hand car in the situation that the evidence in this case may satisfy you they or either of them was left.”
The defendants asked the charges following:
3. “Though the jury believe that the act of leaving the hand car by the crossing was an act of ordinary negligence, as elsewhere defined, yet if it was placed there by the section men or fencing gang or their foreman, neither of said defendants can be liable for such an act by employes of that grade. As there is no evidence connecting either of the corporations defendant themselves with such act, they can not be held responsible for the result of negligence on the part of their employes.”
7. “The defendants are not chargeable with any act of ordinary negligence by or on the part of their employes or servants causing the death of the deceased. To make them liable, the act or omission alleged to have caused the death must have been willful or grossly negligent.”
These were refused.
The statute under which the suit was brought provides for an action “where the death of any person is caused by the negligence or carelessness of the proprietor, owner, charterer or hirer of any railroad, steamboat or stage coach or other vehicle for the conveyance of goods or passengers, or by the unfitness or gross negligence or carelessness of their servants or agents.” (Rev. Stats., art. 2988.)
,, In the petition of plaintiffs the acts of negligence causing the death are alleged to have been done “through and by the unfitness, gross negligence and carelessness of their (defendant’s) agents, servants, employes, hands,” etc.
The evidence showed that deceased was killed by falling from his wagon at a point seventy-five to one hundred and fifty yards from the place he crossed the track; that at the crossing near the railroad track a pile of ties was upon the west side and a hand car upon the east side of the public road; that the ties and hand car had been placed there by a fence gang in the employ of the Texas & Pacific Railway Company, one of the •defendants then employed in fencing the roadway. The men [458]*458composing the fence gang were servants of one of the defendants, employed in work in which both the defendants were interested.
To entitle the plaintiffs to recover, it devolved upon them to prove that the death, when caused by the neglect of the servants, etc., was by their gross negligence. This is obvious from the language of the statute giving the action. If the court needed precedent in holding that when the action is given by statute upon gross negligence of the servants, the plaintiff, availing himself of such right, should bring himself reasonably under its terms, we have such precedent in the case of Missouri Pacific Railway Company v. Scott, Tyler term, 1886 (not reported), cited with approval in Hendrick v. Walton, 69 Texas, 195; and as holding that this provision, before its amendment, March 25, 1887, by the omission of the word “gross,” as descriptive of the degree of negligence upon which right of action was given, “afforded no remedy against a railroad company when the death was caused by the ordinary neglect of the servants or agents of the corporation.”
So, in 57 Texas, 306, Railway v. Cowser, this difference was recognized between the liability of a railroad owner, etc., for the acts of its representative in its corporate capacity, and for the acts of a mere ordinary servant.
In 52 Texas, 600, Cotton Press Company v. Bradley, this distinction was again recognized, and it was held that a charge-was defective in not defining gross negligence, the action having been brought upon negligence of the employes of the cotton-press company.
The record here shows that the charge of the court gave the-rule as to the liability upon want of ordinary care—that is upon ordinary negligence. It also appears that the defendant asked that the charge be corrected by asking instructions defining their liability for the acts of their employes in accordance with-the statute under which suit was brought.
Counsel for appellees urge in their brief “that the uncontradicted evidence shows that the hand car had been left at the crossing when the accident occurred for a long period in the right of way of the county road, and after the teams of the traveling public had on many occasions taken fright at the same. From which the acts were per se gross negligence.”
Opposed to this may be cited the discussion of negligence, and of the respective duties of court and jury in ascertaining [459]*459its existence, in 46 Texas, 366, Railway v. Murphy, in which is suggested that, “in the absence of a law defining the acts which constitute negligence, it is a fact to be found by the jury upon evidence as any other material fact.”
It is has been held that, “where the facts are undisputed and such that only one conclusion can be drawn from them, the question is one of law.” (1 McCrary, C. C. Rep., 505, O’Neill v.
Free access — add to your briefcase to read the full text and ask questions with AI
Walker, Associate Justice.
This is an appeal from a judgment in favor of Elizabeth Hill, widow of David Hill, and their five minor, children, against appellants, for causing the death of said David Hill by the gross negligence of the servants of appellants
The petition alleges the death October 29, 1885, at the railroad crossing of a public county road, one and one-half miles east of Clarksville, by being thrown from his loaded wagon through the alleged defects in the crossing, and from fright of his team of horses at a pile of cross ties on the west and a hand car, on the east side of a public road, and near the railroad track, and so close together that there was barely room for the passage of. vehicles. The obstacles were on the right of way both of the railroad and of the county road.
Defendants pleaded not guilty and contributory negligence. The testimony failed to prove the allegations as to the actual crossing as out of repair. The charge of the court was directed to the case as made by the' presence of the obstacles and their effect. The decased fell from a bale of cotton in the wagon on which he was riding, from seventy-five to one hundred and fiftv yards from the crossing, his horses being in a gallop when he fell.'
Upon such testimony it is held that there was no material variance between the allegations and proof. Plaintiffs only failed in proof of some of their allegations.
The second assignment of error attacks the charge of the court and the refusal of certain charges asked, “holding defendants liable if the death was caused by the negligence of defendants’ subordinate employes, though the negligence was not that of the defendants, and though the negligence of the employes was not gross, but ordinary negligence only.”
The parts of the charge of the court upon negligence are here given: “In order to find for the plaintiffs * * * you must be satisfied by preponderance in the evidence that all of the following propositions are true:” * * *
“2. That David Hill is dead, and that his death was caused by the negligence of the defendants in placing a pile of railroad ties or a hand car, or both of such objects, so near to the public [457]*457•county road as to frighten horses and teams of persons traveling on such road, and that the same was calculated to have that effect.” * * *
“5. That a person of common prudence and caution in a like business as the defendants would not, under ordinary circumstances, have left the ties or hand car in the situation that the evidence in this case may satisfy you they or either of them was left.”
The defendants asked the charges following:
3. “Though the jury believe that the act of leaving the hand car by the crossing was an act of ordinary negligence, as elsewhere defined, yet if it was placed there by the section men or fencing gang or their foreman, neither of said defendants can be liable for such an act by employes of that grade. As there is no evidence connecting either of the corporations defendant themselves with such act, they can not be held responsible for the result of negligence on the part of their employes.”
7. “The defendants are not chargeable with any act of ordinary negligence by or on the part of their employes or servants causing the death of the deceased. To make them liable, the act or omission alleged to have caused the death must have been willful or grossly negligent.”
These were refused.
The statute under which the suit was brought provides for an action “where the death of any person is caused by the negligence or carelessness of the proprietor, owner, charterer or hirer of any railroad, steamboat or stage coach or other vehicle for the conveyance of goods or passengers, or by the unfitness or gross negligence or carelessness of their servants or agents.” (Rev. Stats., art. 2988.)
,, In the petition of plaintiffs the acts of negligence causing the death are alleged to have been done “through and by the unfitness, gross negligence and carelessness of their (defendant’s) agents, servants, employes, hands,” etc.
The evidence showed that deceased was killed by falling from his wagon at a point seventy-five to one hundred and fifty yards from the place he crossed the track; that at the crossing near the railroad track a pile of ties was upon the west side and a hand car upon the east side of the public road; that the ties and hand car had been placed there by a fence gang in the employ of the Texas & Pacific Railway Company, one of the •defendants then employed in fencing the roadway. The men [458]*458composing the fence gang were servants of one of the defendants, employed in work in which both the defendants were interested.
To entitle the plaintiffs to recover, it devolved upon them to prove that the death, when caused by the neglect of the servants, etc., was by their gross negligence. This is obvious from the language of the statute giving the action. If the court needed precedent in holding that when the action is given by statute upon gross negligence of the servants, the plaintiff, availing himself of such right, should bring himself reasonably under its terms, we have such precedent in the case of Missouri Pacific Railway Company v. Scott, Tyler term, 1886 (not reported), cited with approval in Hendrick v. Walton, 69 Texas, 195; and as holding that this provision, before its amendment, March 25, 1887, by the omission of the word “gross,” as descriptive of the degree of negligence upon which right of action was given, “afforded no remedy against a railroad company when the death was caused by the ordinary neglect of the servants or agents of the corporation.”
So, in 57 Texas, 306, Railway v. Cowser, this difference was recognized between the liability of a railroad owner, etc., for the acts of its representative in its corporate capacity, and for the acts of a mere ordinary servant.
In 52 Texas, 600, Cotton Press Company v. Bradley, this distinction was again recognized, and it was held that a charge-was defective in not defining gross negligence, the action having been brought upon negligence of the employes of the cotton-press company.
The record here shows that the charge of the court gave the-rule as to the liability upon want of ordinary care—that is upon ordinary negligence. It also appears that the defendant asked that the charge be corrected by asking instructions defining their liability for the acts of their employes in accordance with-the statute under which suit was brought.
Counsel for appellees urge in their brief “that the uncontradicted evidence shows that the hand car had been left at the crossing when the accident occurred for a long period in the right of way of the county road, and after the teams of the traveling public had on many occasions taken fright at the same. From which the acts were per se gross negligence.”
Opposed to this may be cited the discussion of negligence, and of the respective duties of court and jury in ascertaining [459]*459its existence, in 46 Texas, 366, Railway v. Murphy, in which is suggested that, “in the absence of a law defining the acts which constitute negligence, it is a fact to be found by the jury upon evidence as any other material fact.”
It is has been held that, “where the facts are undisputed and such that only one conclusion can be drawn from them, the question is one of law.” (1 McCrary, C. C. Rep., 505, O’Neill v. Chicago, etc., R. R. Co.)
It would not be insisted that the trial judge could have told the jury that negligence was proven upon part of the defendants, or that the facts in evidence showed as matter of law negligence. If not, for a stronger reason, would it be improper for the court to assume and act upon as a matter of law the presence of the higher degree of negligence, denominated gross negligence.
While the opinion in the Murphy case, above cited, has not received the unqualified sanction of our courts, yet it has been substantially followed. We have been cited to no case where it had been held competent for the court to charge upon any particular combination of facts as constituting negligence, save when so declared by law. Courts have insisted upon the right in plain cases to exercise such prerogative, but it has been a barren right, and no exercise of it has been known to us by our courts. (Railway v. Gasscamp, 69 Texas, 547.)
The amendment March 25, 1887, dropping the word gross, as descriptive of actionable negligence, where used in the original act, is a great relief to the bar and to the bench. It certainly is more natural to investigate as a basis for relief the fact of negligence, and whether it caused the injury, considering negligence to be the want of proper care under the attendant circumstances, whether slight, ordinary or great, the degree of care required by law to be explained by the court. Cases have been affirmed where this rule has not been followed, and upon the record showing actionable negligence ih violation of the duty of ordinary care, but in no case did the defendants object or place themselves in a condition to avail themselves of their strict rights. Of course it is to be presumed that the rights in litigation in those cases did not require further investigation or counsel would have raised the question.
It is not deemed necessary to discuss the' sufficiency of the testimony. While the testimony to other horses being frightened at the crossing does not show or tend to show more [460]*460than that the crossing, by reason of the presence of the hand car by the road side so near the pile of ties, was an object of terror to horses passing by, still that fact, if established, is one to which the jury might and should give attention as a circumstance when it was shown that the team of the deceased was frightened near to and just after passing the obstacles when there is not shown to have been present any other cause of their fright. The facts were sufficient to be submitted to the jury.
For the error in refusing the instructions asked by defendants, the judgment below is reversed.
Reversed and remanded.
Opinion delivered October 16, 1888.