Texas & Pacific R. R. v. Dudley ( 1878 )

Opinion by

White, J.

§ 540. Damages for destruction of crop; liability of railroad company for failing or neglecting to put up cattle-guards. Our statute requires that “each and every railroad company whose railroad passes through a field or inclosure is hereby required to place a good and sufficient cattle-guard, or stop, at the points of entering or leaving such field or inclosure.” [Pas. Dig. art 4925.] If, from the neglect of the company to do this duty, a party’s crop is damaged or destroyed, then the railroad company owning the road is liable for all such damages done throughout the entire limits of the field or inclosure.”

§ 541. Independent contractor, who is, and when liable, and not the railroad. The rule for determining who are independent contractors, concisely stated, is: “When the details of the contract are to be completed under the orders of the company employing the other, and according to their direction, and the contractor undertakes, in general terms, and the company reserves the right and power not only to direct what shall be done, but how it shall be done, and to control the doing of it whilst it is being done, then the contractor is not an independent contractor, but is the agent, servant or employee of ^the party for whom he is doing the work.” [H. & G. N. R. R. Co. v. Van Bayless, ante, p. 247.]

December 20, 1878.

As stated above, if the crop was destroyed because cattle-guards were not made, then the company owning the road would be liable for the damages. [H. & G. N. R. R. Co. v. Meador, 50 Tex. 77.] If, however, the damages were not occasioned by failure to erect cattle-guards, hut were occasioned by the wanton or intentional destruction of the crop by an independent contractor, his agents or servants, then the company employing such independent contractor would not be liable. These two aspects of the case were not properly submitted to the jury in the 'charge of the court. ■

Eeversed and remanded.