East Line & Red River Railway Company v. J. S. Rushing, 69 Tex. 306

Willie, Chief Justice. This was a suit by Rushing against the appellant in which damages were claimed for injuries received by the plaintiff whilst a passenger on the defendant’s train.

The defendant pleaded a general denial of the allegagations of the petition; that the plaintiff’s negligence contributed towards producing the injuries; and further, that it had sold and transferred its railroad and equipments to the Missouri, Kansas and Texas Railway Company, by due authority of law, in 1881; and that at the time plaintiff was injured it was not operating the road, nor was it in any way responsible for its control and management. To this last plea a demurrer was sustained by the court below, and that part of the answer was stricken out.

The trial of the cause before a jury resulted in a verdict for the plaintiff for five thousand dollars, and from the judgment rendered therein this appeal is taken. The first error assigned is to the ruling of the court sustaining the plaintiff’s exception to the defendant’s special answer setting up the sale and transfer of its road to the Missouri, Kansas & Texas Railway Company.

The answer alleges that the sale was made by virtue of certain acts of the Legislature, which are not set out in full, but are pleaded by their title and dates of approval; and the further averment is made that these acts authorized the sale and transfer to be made. Our statute provides that when any pleading is founded wholly or in part upon any private act, it shall not be necessary to set it out, but it shall be sufficient to recite the title thereof, and the date of its approval, and to allege in substance so much of said act as may be pertinent to the cause of action or defense. (Rev.

Stats, art. 1191.) Admitting that an allegation that

an act authorized a railroad company to sell and transfer its road is an averment of the substance of that part of the law which gives the authority; we think that such an allegation places before the court the entire act, so far as it relates to the authority claimed, and the court may examine it to see whether its provisions in this respect are properly stated. The object of the statute is to relieve the pleader from the necessity of setting forth the act or any of its provisions in full, and to give him, his adversary, and the court the same benefit of these provisions as if they formed a part of his pleading.

Hence, upon a demurrer to the answer the court may look at the act, and see if the substance of the provision relied on is properly alleged. The defendant asserted that certain acts of the Legislature authorized it to sell its road and equipments to the Missouri, Kansas & Texas Railway Company. The particular sections of the acts in which the authority was to be found were not pointed out, but the entire acts were submitted to the inspection of the court, and it was alleged that they contained the grant of power relied on.

Statutes of which judicial notice could not otherwise have been taken were thus brought to the actual knowledge of the court; and they could be taken into consideration in passing upon the question as to whether the answer had properly construed them. The fifth

section of the act of 1871 pleaded by the appellant, provides in its last cause as follows: “ Said company is authorized, and the right is hereby granted them, to cross or connect with any other railway, to join stocks or consolidate with any other railway company running in the same general direction.” The fourth

section of the amendatory act of 1873 contains this provision: “ That said company shall not have the right to rent, sell, lease or consolidate with any parallel or competing railroad in this State.” The fourth

section of the act of August 2, 1870, in relation to the Missouri, Kansas & Texas Railway Company reads as follows: “ That the said company should have the right to purchase, sell, lease, join stocks, unite or consolidate with any connecting railroad company, by and with the approval and con. sent of a majority in interest of the stockholders in such company, and to acquire and merge into itself all or any part of the property, rights and privileges and franchises of such other companies, upon such terms and conditions as may be agreed .upon by their respective boards of directors.” All of these acts were pleaded by the company; and if it was empowered to sell, and the Missouri, Kansas & Texas Railway Company to buy its road and operate the same, so as to release the appellants from responsibility for the wrongs complained of in this action, the power must be found in the sections we have recited.

The power granted the Missouri, Kansas & Texas Railway Company to purchase is restricted in one respect only: the property, franchises, etc., purchased must belong to some company whose line connected with its own. But in the case of the East Line & Red River Company, further restrictions are imposed as to sale and consolidation. This company must not consolidate with or sell to any other company except such as has a line of road running in the sáme general direction nor to a parallel or competing railroad.

In order to render a contract of sale effective, there must be both a power to sell in the vendor, and a power to purchase in the vendee. If, therefore, the lines of these two roads did not connect, the sale was unauthorized because the purchasing company had no right to buy; and if they were parallel or competing lines, it was unauthorized because the appellant company had no right to sell.

It may be that this court, judicially knowing the geography of the State» might take notice from the general direction of these two roads as fixed by the statutes under consideration, that their lines must necessarily cross each other, and could therefore treat them as connecting lines, and not parallel to each other. But as to whether they were competing lines, we could have no judicial knowledge whatever. Competition between railroads may exist and yet their lines not run parallel but cross each other at some point in their route.

Hence when a question as to such competition is raised, the court or jury must have proof upon the subject, as in case of any other fact submitted for its consideration. The appellant claimed a right to which it was not entitled by the general law of the State. It claimed a privilege not accorded to railroad companies generally, either by common law or statute. It claimed this under a private act passed for its special benefit.

It was its duty therefore to bring itself clearly within the purview of the act, to show that the circumstances under which the right to sell its franchise and property could be claimed actually existed at the time of the sale; that the road to which it was sold was a connecting, but not a parallel or competing line. There was no allegation in the answer that the Missouri, Kansas & Texas Railway was not a competing line, and as the court could not judicially know that such was the case, the answer was fatally defective. It did not make out a state of case in which the defendant company could sell out to another.

Without due statutory authority a railroad company can not transfer the right to operate its road so as to absolve itself from its duties to the public, or its liability to the torts of the company by whom the road is operated. (I. & G. N. R. R. Co. v. Underwood, 4 S. W. Rep., 216; Ry. Co. v. Morris, 3 S. W. Rep., 457.) The State violated no contract previously made with the Missouri, Kansas & Texas Railway Company, nor did it interfere with any right vested in that corporation by forbidding the appellant to consolidate with it if it was a competing line.

No such right existed at the time the act for the benefit of the Missouri, Kansas & Texas Railway Company was passed; and no contract authorizing the consolidation was then made in reference to the defendant company; for at that time the latter was not in existence. Public grants must be strictly construed. Nothing passes to the grantee by implication. We must not construe a grant of this character so as to tie up the hands of the State and forbid it from imposing restrictions upon private corporations to be chartered in the future.

Such restrictions are prescribed for the good of the whole community, and the State must not be held to have abdicated for the benefit of a single corporation the power to impose them for the future, when there is no special provision to that effect, if indeed this can be done at all. (Charles River Bridge v. Warren Bridge, 11 Pet., 420.) The charter of the East Line & Red River Railroad Company, as amended, provided that it should not sell out to a competing line. This it contracted not to do.

Upon what principle then can it plead that it was released from this obligation on its part and hold the State to those which it assumed? Certainly not for the reason that the rights of another company will be thereby violated. The State did not contract with the appellant that it would not interfere with the rights of others but only with those of the appellant. The State has not impaired the contract with the appellant, and it had not the right to break its contract, and hence could not sell out to another company unless the railroad of the latter was not in competition with that of the appellant.

Besides the act in relation to the Missouri, Kansas & Texas Railway Company required that, in order that it might purchase other roads, a majority of its stockholders and those of the company selling out to them, should agree to the sale. The stockholders of the appellant company could not agree to sell to the Missouri, Kansas & Texas Railway Company, if its line competed with that of appellant,^ as this was forbidden by statute, and their agreement was ultra vires and void. The first assignment is not well taken.

The second complains of the following charge given below: “If the jury believe, from the evidence, that plaintiff was at the time alleged in the petition a passenger on defendant’s train from McKinney to Green-ville, and that when said train arrived at Greenville and stopped, plaintiff, without any unavoidable delay, was in the act of leaving the passenger car, and before a reasonable time had been afforded him to do so, the defendant’s servants and employes ran a switch engine against the car in which plaintiff then was, with such force and violence as to throw plaintiff down and inflict upon him personal injuries, then the jury should find for the plaintiff,” etc.

It was in proof that the appellee, some time before receiving the injuries on account of which this suit was brought, had been hurt by a fall which occurred whilst he was in the employ of parties who had a construction contract under the Gulf, Colorado & Santa Fe Railway Company, and that he had been sent to a hospital in Galveston for treatment. After remaining there several weeks he left for Greenville, in Hunt county, and was getting off the train of appellant at that place when his injuries occurred.

The injury was caused by the running of a switch engine against the car from which the appelle was attempting to alight, which caused him to be thrown across the seats of the car, thereby severely "injuring his hip and other parts of his body. The objection to the charge is, that the appellant’s liability was made to depend upon whether the force of the engine was sufficient to throw the plaintiff down, and not whether it was sufficient to throw down a person of ordinary physical abilities. The charge as given is correct in law.

A railroad company owes a duty to others besides persons of ordinary physical ability. They are presumed to know that persons in feeble health, old or decrepit, travel upon their trains, and they must exercise care accordingly. The charge being correct law as a general proposition, if the appellant wished it to be framed with special reference to the supposed enfeebled condition of the appellee, it should have asked a charge of the court adapted to its view of the case.

It . may be added, however, that there is little or nothing in the evidence to show that the plaintiff could have withstood the shock if he had been in good physical condition, for others not shown to have been unsound were thrown down by the violence of the concussion. We think the assignment not well taken.

The following portion of the charge is also complained of: “Or if the defendant’s servants and employes were not guilty of any negligence in running the switch engine against the car in which plaintiff was; that is, if the plaintiff had been allowed a reasonably sufficient length of time, under the circumstances, to leave and alight from said car, before the switch engine approached it, and if said switch engine was brought into contact with said car with only such degree of force as was necessary to make the coupling thereto, then the plaintiff would not be entitled to recover,” because it required the defendant to show not only that the plaintiff had been an unreasonable length of time in leaving the train, but also that the switch engine was driven against it with more force than was necessary in order to make a coupling.

The clause of the charge objected ¡ to is only a portion of the fourth instruction given to the jury., The whole of this instruction must be taken in connection in order to arrive fully at the meaning of the court.

In another portion of it the judge told the jury in effect that they must believe that the collision occurred before the plaintiff had been allowed; a reasonable time to leave the train in order to find a verdict in. his favor.' This, taken in connection with the clause complained ■ of, could not possibly have led the jury into the belief that the plaintiff could recover if a reasonable time to alight from the train had been allowed him, though unnecessary force had been, used in making the coupling.

If the plaintiff could recover 1 only in the event that the collision occurred before he had reasonable time.to alight, he could not recover, if such reasonable time had been allowed, no matter how unnecessary the force that produced the collision. Beside, the clause objected to states what is correct in law, and if the appellant wished the language-changed or qualified, it should have asked an appropriate special charge, which was not done.

The following portion of the charge is also assigned as error: “Or, if the defendant’s servants and employes were guilty of negligence upon the occasion in question, which (contributed) directly to the injuries complained of, yet, if the plaintiff might in the exercise of ordinary care and caution, have seen the danger and avoided it, and his omission to do so directly contributed to the injuries, then plaintiff was guilty of such contributory negligence as will prevent a recovery in this suit, unless the plaintiff’s injuries were caused by the wantonly reckless acts of defendant’s servants; or, unless the plaintiff was only guilty of slight negligence, and the defendant’s servants were guilty of gross negligence.” It is not complained that this charge is not good law but that the facts did not warrant its being given, there being no proof that the defendant’s servants or employes were guilty of wanton recklessness or gross negligence.

The plaintiff’s evidence showed that the train had stopped for breakfast allowing twenty minutes for the meal, and that the passengers, including the appellee, commenced immediately to leave the car upon which he was riding. That he went to the back door of the car, and found it locked, and then towards the front door, and was delayed in getting there by the narrowness of the space "between -She two tiers of seats, which did not admit of his passing by a Aady and her children who were ahead of him.

Although every reasonable effort seemed to have been made by these passengers to get off the train in proper time, yet they were left to take «are of themselves by the conductor, who had gone off, thinking that every passenger had got off the train. The brakeman, whose duty it was to watch the switch engine, saw it coming, but did nothing to notify those in charge of it that the collision might injure passengers in the act of alighting from the car. It was certainly

an act of carelessness on the part of the conductor to leave his train before the passengers had reasonable time to get off the cars, when he knew that a switch engine was to be coupled to it, without giving them any notice of the danger to which they might be subjected. It was gross neglect on the part of the brakeman to allow the engine to be run against the train with such violence as would endanger the safety of the passengers, when it was in his power and part of his duty to prevent the occurrence.

These careless acts of the conductor and brakeman without reference to other facts that might be mentioned, justified the court in submitting the question of gross negligence to the jury.

It Is finally objected that the court gave this charge to the jury: “If the jury find that plaintiff had been injured in November, 1885, and remained until February, 1886, in the hospital in Galveston, and left the hospital at that time, and at the time his knee was so far recovered it would have gotten well, and that he was afterwards, in March, 1886, injured by the negligence of appellant, if the jury believe that at that time the plaintiff had so far recovered from his prior injury that, with ordinary care, it would have gotten well, or that it was well, and that, without fault on the part of plaintiff, it was hurt by the negligence of defendant so as to render it stiff and permanently so, then defendant would be liable for the injury so occurring.” It is objected that this charge assumes as a fact that, prior to his injury at Greenville, the appellee had been injured only in the knee; whereas he had been injured in the hip also.

The court had already charged that if plaintiff’s injuries were received prior to his becoming a passenger on defendant’s train, they must find for defendant. This would include hip injuries as well as others. Besides, there was no proof in the record that the plaintiff’s hip had been injured before he took passage on appellant’s train. The doctors who treated him at Galveston say that he was injured only in the right ankle and left knee. Appellee says himself that he was injured only in those parts, and that he was well before he left the hospital.

Doctor Gilbert, physician for appellant, examined the appellee a year after he received the injuries for which suit was brought. He thought the injury to the knee might have affected the hip. We can not say that the court was bound to give any weight to the opinion of a physician who had not seen the plaintiff when suffering from his former wounds, to the effect that there was a bare possibility that his hip might have been involved in the injuries, when positive proof, from those who had every opportunity of knowing, showed conclusively that no such effect had been produced.

We see no error in the judgment’, and it is affirmed. Affirmed. Opinion delivered December 9, 1887.