Texas & P. R'y Co. v. Kirk

Stayton, Associate Justice.

The petition for the removal of this cause from the district court of this state to the United States circuit court is in all material respects the same as was the petition for removal in the case of Tex. & Pac. R’y Co. v. McAllister, decided at the last Austin term of this court. 59 Tex., 349.

In that case it was held that the petition for removal stated no sufficient grounds therefor.

In this case no authority or reason has been brought forward inducing us to doubt the correctness of the decision made in the case referred to, and without again giving the reasons set forth that case, we hold that the petition for removal was insufficient, and that the court below did not err in retaining and trying the case. It is not urged that the application was sufficient under any other of the removal acts than the act of July 27, 1868; hence we deem it unnecessary to consider it under any other.

The fourth asssignment asserts that the admission of the testimony of a witness to the effect that another train on the appellant’s railway, on the same day and near the same place as that on which the husband of the appellee was injured, was thrown from the track, was error.

The fifth assignment asserts that the court erred in permitting two witnesses to state the condition of appellant’s track in the vicinity of the place where the train was thrown from its track, at the time appellant’s husband was injured, and for some time prior thereto.

The pleadings in this cause in reference to the manner in which the injury complained of was caused; as to the condition of appellant’s road at the place and in the vicinity of the place where the injury occurred; as to its negligence in not keeping its road in good and safe condition; and also as to its knowledge of the dangerous condition of its track, and its indifference to the safety of passengers, as well as the relief sought, i. e., damages both actual and exemplary, are substantially the same as in the case of the same appellant against De Milley decided this day; the injuries which the appellee in that case and in this complain of, having been inflicted at the same time and resulting from the same cause.

In the case of The Texas & Pacific Eailway Company v. De Milley, the questions presented by the fourth and fifth assignments were considered, and it was held that the evidence was admissible and for the reasons given in that case we so hold in this.

The second, third and sixth assignments of error are named, and the seventh is, “ The court erred in not giving all the special charges asked by defendant.”

There were thirteen special charges asked by the defendant, upon a variety of subjects, upon some of which the court in the main charge had in effect given the charges asked, and the only matter which can be considered under this assignment is, was it error in the court to refuse to give them alL

The first, second and thirteenth instructions asked were in substance that the plaintiff could not recover if the injury was not caused by a broken and partly missing rail. The petition alleged that the rail which caused the cars to be thrown from the track was and had been broken for several days before the injury, and that a part of the rail was missing, and it is claimed that both of these defects must have been proved to authorize a recovery.

We do not so understand the rule. The general rule regulating the sufficiency of evidence is, that it is sufficient if the substance of the issue be proved. 1 Greenl., 561.

The substance of the issues in this case was: Was the track of the appellants road unsound and unsafe by reason of a defective rail, and was that the cause of the injury ?

It was alleged that the track was defective in two respects. 1st. That the rail was and had been for some time broken. 2d. That a part of the broken rail was missing. Proof of either of these facts would have been sufficient to establish the defective character of the track, and to sustain so much of the issue; and if the other evidence in the case showed that such defect caused the injury, then the matter in issue was sufficiently proved, in so far as it was necessary to show the cause of the injury, and so far as the issue under consideration was concerned.

In the case of The Pittsburg, Ft. Wayne & Chicago R’y Co. v. Ruby, 38 Ind., 305, it was alleged that the conductor and braheman on a freight train carelessly and negligently failed to properly adjust a switch and signaled a passenger train to advance. The jury found that neither the conductor nor brakeman signaled the train to advance, but that the employes of the company did so, and it was claimed that there was a variance between the pleading and proof, or verdict. The court held that there was no variance between the pleadings and the special verdict.

The court would have erred if it had given the charges referred to.

The appellant sought, by the seventh special instruction, to have the jury instructed in effect that they must find for the defendant if the deceased was an employe of the company, and the injury was caused by the negligence of a servant of the company.

It appears that the deceased was stock and fuel agent for the appellant, and that his duty called him frequently to be upon the trains. The petition alleged, and the proof tended to show, that the injury was caused by a defective track.

Such being the case, the court would have erred if it had given the instruction asked; for even if the deceased was an employee (within the meaning of the rule which ordinarily prevents a servant from, recovering damages from the master for an injury received from the negligence of a servant in the common employment), as held in The Texas M. R. Co. v. Whitmore, 58 Tex., 277, and cases therein cited, the duty to have a sound track was the duty of the appellant, from which it could not excuse itself under the plea that its employees had failed originally to so construct it, or that after so constructed they had failed to keep it in proper order.

The seventh assignment of error is so general that it cannot be further considered, no error appearing which goes to the foundation of the action. Rules 24, 25 and 26, 47 Tex., 602; Green v. Dallahan & Co., 54 Tex., 285; 54 Tex., 46; 46 Tex., 589; 45 Tex., 415; 44 Tex., 540.

The tenth' assignment of error has been considered substantially under the seventh assignment, and raises the question of variance between the pleading and proof, and need not be further considered.

The eleventh assignment is, “the court erred in overruling defendant’s motion for a new trial.”

The motion for a new trial is based upon ten separate and distinct grounds, and under the well settled rules of this court the assignment must be held not to specify the grounds of error relied on. Rules 24, 25 and 26, 47 Tex., 602; Houston & T. C. R. R. Co. v. Shafer, 54 Tex., 641; Green v. Dallaban & Co., 54 Tex., 281; Flannagan v. Womack & Perry, 54 Tex., 46; Tompkins v. Toland, 46 Tex., 589; Lumpkin v. Murrell, 46 Tex., 56; Clements v. Hearne and wife, 45 Tex., 415; Austin v. G., C. & S. F. R. R. Co., 45 Tex., 260; Dunson v. Payne, 44 Tex., 540. It not appearing that in this respect there is any error going to the foundation of the case or to the right and justice of the decision, the assignment cannot be considered. The verdict of the jury is large, but, even if the amount of the verdict was assigned as error, we could not say under the evidence that it was so evidently excessive as to justify this court in setting it aside.

The twelfth assignment of error is, “ the court erred in not sustaining the special demurrers to plaintiff’s petition.” The only matter urged under this assignment is that the petition gave the conclusions of the pleader in regard to certain matters. This is true; but the facts upon which the conclusions were based were fully stated, and if true justified the conclusions drawn from them, and the appellant could not have been prejudiced by the ruling of the court.

[Opinion delivered October 19, 1883.]

There is no such error presented as requires, or would justify, the reversal of the judgment of the court below, and its judgment is affirmed.

Affirmed.