Houston & Texas Central Railroad Company v. John O. Cluck, 99 Tex. 130

BROWN, Associate Justice. In April, 1900, the Austin & Northwestern Eailroad Company owned and operated a line of railroad through Williamson County, by and near to a spring or well upon a tract of land which belonged to George W. Cluck.

Under contract with Cluck, the railroad company dug out the spring in order to form a basin from which to supply water to its trains and for other purposes, and placed upon the well thus dug a substantial covering which rendered it safe against any person getting into it; and also constructed near by a pump house, and placed pipes to connect the pump with the well to raise the water to a tank from which its engines were supplied. George W. Cluck lived upon a farm near to the well and there was on the farm and beyond the well from his residence, a gulley which the family used for private purposes.

A path led from the residence by the spring to the gulley which was traveled by the members of the family and visitors in going to and from the gulley, which was known to the railroad company. On April 6, 1900, a very heavy rain fell in that section, which caused a small creek near by to overflow its banks and to wash the covering off of the well carrying it about one hundred yards distant. The pump house was also moved and the pipes connecting the pump with the well were broken.

Within a day or two thereafter employes of the railroad company restored the house to its former position and connected the pipes of the pump with the well so that it might be used, but did not place any covering over the well, nor erect any fence or guard of any kind to prevent persons passing thereby from falling into the well. John 0.' Cluck is a son of G. W. Cluck, and was raised upon the farm. He was accustomed to travel the path by the spring to the gulley and return.

At the date named he was a married man, living some miles from his father’s house; but on the evening of the 11th of April, 1900, he came to his father’s house after dark, and having a call - to repair to the gulley was on his return to the house, walking along the path when, to avoid the mud, he stepped outside of the path, at which time a cat sprang out suddenly startling him so that he stepped still further away from the path and thereby fell into the well. -He received serious injuries which the evidence tended to show were permanent, and were such as to justify the verdict.

This suit was instituted against the Austin & Northwestern Railroad Company, but, during its pendency, that railroad was purchased by the Houston &. Texas Central Railroad Company, under authority of a law of the Legislature, after which the latter company was made a party defendant to this suit. No question is made as to the liability of the Houston & Texas Central Railroad, if the Austin & Northwestern Railroad Company is liable to the plaintiff in damages.

Hpon a trial before a jury in the district court, judgment was rendered for Cluck against the railroad company, which was affirmed by the Court of Civil Appeals.

The writ of error was granted in this case because we were of the opinion that the trial court erred in refusing to give to the jury the following charge requested, by the plaintiff in error: “You are instructed that if you believe from the evidence that the defendant, the Austin & Northwestern Railroad Company, after the cover of the well or spring had been Avashed off, did not have a reasonable time to cover or fence the same before the plaintiff sustained the injuries, if any, of which he complains, you will return a verdict for the defendants.” In the general charge given to the jury the court instructed them as folloAvs: “If you further believe that the said railroad company in permitting the said Avell to be and remain Avithout any cover over the same and Avithout any fence surrounding the same, was guilty of negligence as the term negligence has been hereinbefore defined to you, and that such negligence (if you find there Avas such) was the proximate cause of the plaintiff’s injuries (if you find he was injured), then you will find for the plaintiff and assess his .damages in accordance with the instruction hereafter given you; but unless you so find from a preponderance of the evidence, you will return a verdict for the defendants.” That charge submitted to the jury the question of the negligence of the Austin & Northwestern Railroad Company in permitting the spring to remain uncovered or unfenced, and under that charge the jury were authorized to consider all of the facts and circumstances, and to determine Avhether the railroad company had sufficient time to have restored the well to its former condition or not.

The jury were instructed to find for the defendants if they did not find that the Austin & Northwestern Railroad Company was guilty of negligence in permitting the well to remain uncovered and unfenced. There was no evidence to support the charge asked and refused; the only fact that should be considered as tending to excuse the delay is the statement of one witness that all the bridges of the railroad company were in bad shape; but the condition of the bridges did not necessitate a delay in repairing the damage done to the well.

The undisputed evidence affirmatively, shows that before plaintiff was injured the employes of the railroad company replaced the pump house and repaired the pipes of the pump so that the well could be used. These facts show that the railroad company had notice of the condition of the well, and had the opportunity and ability to repair it before the injury was inflicted but failed to do so.

It would have required but little time to place some kind of guard between the pathway and the uncovered well, or to place some kind of protection over the well, which would have been sufficient for the time being until the covering could be restored to its place. There being no evidence before the jury which required the court to give the charge requested by the railroad company, it was not error to refuse it. We have examined each of the twenty-nine assignments of error set out in the application, and find no reason for disturbing the judgment of the trial court.

It is therefore ordered that the judgments of the district court and Court of Civil Appeals be in all things affirmed. Affirmed.