
    HAMILTON v. ST. LOUIS, S. F. & T. RY. CO. MAGNOLIA PETROLEUM CO. v. HAMILTON.
    
    (No. 4029.)
    (Supreme Court of Texas.
    May 5, 1926.)
    1. Master and servant <§=3204(1)— Risk of using obscured crossing held assumed by railway •employee engaged in interstate commerce.
    In action for death of motorcar engineer engaged in interstate commerce from collision between motorcar and a truck at a crossing, field that, notwithstanding defendant’s negligence in permitting grass to grow alongside right of way obscuring-crossing, decedent, haying knowledge of such obstruction, assumed risk of operating his ear thereover.
    2. Commerce <§=38 (6) — Whether motorcar engineer assumed risk of operating car over obscured crossing held question of federal law, where he was engaged in interstate commerce.
    Whether motorcar engineer assumed risk of operating car" over obscured crossing was question of federal law, where he was engaged in interstate commerce.
    3. Statutes <§=»114(7) — Amendment held unconstitutional in so far as attempting to fix liability for death of person when caqsed by negligence of agents or servants of another person, in that no such purpose is declared in caption of Acts 33d Leg. (1913) c|. 143 (Vernon’s Sayies’ Ann! Civ. St. 1914; art. 4694) amending Rev. St. art. 4694, § 2; Const, art. 3, § 35.
    Amendment of 1918 (Acts 33d Leg. e. 143 (Vernon’s Sayies’ Ann. Civ. St. 1914, art. 4694), to Kev. St. art. 4694, § 2, field violative of Const, art. 3, § 35, in so far as it attempts to fix liability for death of a person when caused by negligence of agents or servants of another person, since no such purpose is declared in caption of act
    4. Statutes <§»109 — Constitutional prohibition against legislation on subject not expressed in title is to prevent embracing in act having one ostensible object provisions having, no relevancy to that object (Const.' art. 3, § 35).
    Object of Const, art. 3, § 35, prohibiting legislation on a subject not expressed in title of statute, is to prevent embracing in an act having one ostensible object provisions having no relevancy to that object, but really designed to effectuate other and wholly different objects.
    5.Death <g=>I4(I)— Delivery truck held “other vehicle” within statute'rendering owner liable for negligent death (Acts 33d Leg. [1913] c. 143 [Vernon’s Sayies’ Ann. Civ. St. 1914, art. 4694, subd. I]).
    Motor truck owned by petroleum company and used to convey its goods to customers field included within term “other vehicle,” as used in Acts 33d Leg. (1913) c. 143 (Vernon’s Sayies’ Ann. Civ. St. 1914, art. 4694, subd. 1), making owner of any railroad, steamboat, stagecoach, or other vehicle for conveyance of goods or passengers liable for death caused by negligence.
    [Ed. i\ote — For other definitions, see Words and Phrases, First and Second Series, Other.]
    Error to Court of Civil Appeals of Sixth Supreme Judicial District.
    Action by Mrs. C. E. Hamilton, administra-trix, against the St. Louis, San Francisco & Texas Eailway Company and another. Judgment for plaintiff was reversed and rendered as to the named defendant, and affirmed for plaintiff as to the other defendant (251 S. W. 597), and plaintiff and defendant Magnolia Petroleum Company bring error.
    'Affirmed.
    W. IT. Francis, and A. S. ITardwicke, both of Dallas, and Head, Dillard, Smith, Maxey & Head, of Sherman, for Magnolia Petroleum Co.
    . Chas. Batsell and Wood & Wood, all of Sherman, for administratrix. W. F. Evans, of St. Louis, Mo., Goree, Odell & Allen, of Fort Worth, and Freeman, McEeynolds, Hay & Wolfe, of Sherman, for Railway Co.
    
      
      Rehearing denied June 9, 1926.
    
   GREENWOOD; J.

Mrs. C. 'E. Hamilton, as administratrix of the estate of her deceased husband, sued the St. Louis, San Francisco & Texas Railway Company and the Magnolia Petroleum Company to recover damages for her husband’s death, which was alleged to have been eauspd by the negligence of the agents and servants of said companies. The deceased was an engineer in the employment of the railway company. He was operating one of the railway company’s motor trains transporting passengers in interstate commerce when he met his death in a collision of his train at a public road crossing with an automobile truck belonging to the petroleum company.

The deceased had served the railway company as an engineer for 21 years, and had been running over the crossing for 7 years. He had' traversed the crossing twice a day for some 20 days immediately preceding the collision while under duty to keep a lookout for persons or vehicles at the crossing.

The jury found that the railway company was guilty of negligence in permitting grass and weeds to grow and remain on its right of way, which prevented the deceased from seeing the truck until after it was on the right of way and was about to • cross the track. The jury further found that the deceased did not fail to keep such a lookout for persons at and near the crossing as an ordinarily prudent person would have kept, and that the deceased did not assume the risk incideift to' grass and weeds growing and remaining on the right of way.

The Court of Civil Appeals reversed the judgment of the district court in so far as it awarded the administratrix a recovery against the railway company, and- rendered judgment for the railway company. On writ of error granted the administratrix, she seeks to reverse the judgment of the Court of Civil Appeals in favor of the railway company.

After pointing out that the deceased was bound to know of the presence of the grass,and weeds, under the undisputed facts and the jury’s findings, the Court of Civil Appeals concluded:

“If he knew that, it cannot be doubted, when his age and experience are kept in mind, that he appreciated the additional risk he incurred in operating the car over the crossing because of the existence of the weeds and grass on the right of way. Railway Co. v. Hynson, 101 Tex. 543, 109 S. W. 929. Knowing of the railway company’s conduct in the respect stated, and appreciating the risk arising therefrom, he was within the applicable rule, and we see no escape from the conclusion that the railway company was not liable to appellee for the consequences of the collision.” 251 S. W. 600.

The Commission of Appeals, from whom-this case has been withdrawn, were of the opinion that reasonable minds might differ as to whether the deceased realized the danger created by the weeds and grass. We think the decision of the Court of Civil Appeals oñ this question was correct. As the deceased was engaged in interstate commerce the question is one of federal law. The rule in the Supreme Court of the United States was stated in an opinion by Justice Moody to be:

“Where the conditions are constant and of long standing, and the danger is one that is suggested by the common knowledge which all possess, and both the conditions and the dangers are obvious to the common understanding, and the employee is of full age, intelligence and adequate experience, and all these elements of the problem appear without contradiction from the plaintiff’s own evidence, the question becomes one of law for the decision of the court. Upon such a state of the evidence a verdict for the plaintiff cannot be sustained, and it is the duty of the judge presiding at the trial to instruct the jury accordingly.” Butler v. Frazee, 211 U. S. 467, 29 S. Ct. 138, 53 L. Ed. 281.

See, also, Gila Valley Ry. Co. v. Hall, 232 U. S. 102, 34 S. Ct. 229, 58 L. Ed. 521, and Southern Pacific Co. v. Berkshire, 254 U. S. 417, 41 S. Ct. 162, 65 L. Ed. 337.

The rule applied by the Supreme Court of the United States follows the common-law principle disclosed in Patton v. Dallas Gas Co., 108 Tex. 326, 192 S. W. 1060, where this court s.aid:

“He [the servant] cannot close his eyes and refuse to see a danger which is open and obvious to him, and which he would necessarily see, without attempting to make an inspection He cannot refuse to look and to see the danger which is obvious and in such plain view as that he would be compelled to see it if he exercised his sense of sight, and be acquitted of the assumption of the risk upon,the ground that he did not know of the danger. In such a case he must be held to have known that which he must necessarily have known, had he looked.”

The petroleum company was an unincorporated joint-stock association organized for the purpose, among others, of carrying on the business of manufacturing and selling petroleum products. It distributed and sold such products throughout the state, having offices and storage tanks at Sherman in Grayson county. A part of its regular business was the transportation and delivery of its products, such as gasoline and kerosene, throughout Grayson county by means of automobile trucks. These trucks carried no goods other than those belonging to the petroleum company! The truck which collided with the train operated by Hamilton and thus caused his death was regularly used over the public roads in distributing the company’s products in and around Sherman. At the time of the collision, which was occasioned, according to the jury’s findings, by the negligence of the petroleum company’s servant in operating the truck, it was being driven from Sherman to a smaller town in Grayson county, and was loaded with 200 gallons of gasoline in cans and 120 gallons of kerosene in cans.

- The Court of Civil Appeals affirmed a judgment of the district court awarding the ad-ministratrix damages against the petroleum company. A writ of error was then sued out by the petroleum company to .reverse the judgments of the district court and of the Court of Civil Appeals.

The collision occurred while the act relating to injuries resulting in death, approved April 7, 1913 (Acts 33d Beg. c. 143 [Vernon’s Sayles’ Ann. Civ. St. 1914, art. 4694]), was in force. The single ground urged in this court by the petroleum company for the reversal of the judgments against it is that the 1913 act did npt fix liability upon the petroleum company for a death caused by the negligence of one of its servants while operating a truck conveying its manufactured products.

The Court of Civil Appeals and the Commission of Appeals concur in the opinion: First, that the second section of the act in so far as it attempted to fix liability for the death of a person when caused by the negligence of the agents or servants of another person was void, because no such purposb was declared in the caption of the act; and, second, that the first section of the act fixed liability on the petroleum company for a death caused by the negligence of a servant operating one of its delivery trucks, because it was the owner of a vehicle for the conveyance of goods other than1 the vehicles specifically enumerated.

We have no difficulty in agreeing with the first of these conclusions. The administratrix argues that the caption should be construed as if it read: “An act to amend article 4694 of the Revised Civil Statutes of 1911.” The insuperable obstacle to the soundness of this argument is that the subsequent words of the caption, to wit, “giving cause of action where injuries resulting in death is caused by the negligence of a corporation, its agents or servants,” were manifestly intended to Rave some effect. If they could be given the effect of merely an imperfect or inaccurate description of the article sought to be amended, then we might uphold the attacked portion of section 2 as germane to the subject dealt with by tibe original article and therefore valid, as was held in Mortgage Co. v. Hardy, Secretary, 93 Tex. 298, 55 S. W. 169. What prevents us from treating these words as defining the law to be amended is the express declaration of the emergency clause that such law as construed by the Supreme Court did “not allow recovery for injuries resulting in death caused by the wrongful act, neglect, unskillfulness or default of a corporation, its agents or servants.”

With the very language of the act precluding the words being interpreted as stating the law to be amended, the words can have no othe'r intent then to declare the purpose of the amendment. A caption which declares a purpose to amend a statute by adding thereto a clause creating liability for injuries resulting in death when caused by the negligence of corporations, their agents, or servants cannot be regarded otherwise than as deceptive in so far as the amendment may seek to declare liability for deaths occasioned, not by the negligence of corporations, their agents or servants, but for deaths occasioned by the negligence of persons, their agents or servants. Arnold v. Leonard, 114 Tex. 543, 544, 273 S. W. 799.

The court declared through Judge Wheeler in Tadlock v. Eccles, 20 Tex. 792, 73 Am. Dec. 213, that the intention of the constitutional prohibition in section 35 of article 3, against legislation on a subject not expressed in a title, “doubtless was, to prevent embracing in an act, having one ostensible .object, provisions having no relevancy to that object, but really designed to effectuate other and wholly different objects.”

It follows that the Court of Civil Appeals did not err in following here the clear opinion of the Galveston Court of Civil Appeals in Rodgers v. Tobias, 225 S. W. 804, wherein writ of error was denied.

We have had more trouble in reaching a decision as to whether the petroleum company was rightly held liable under the first section of the act as the owner of a vehicle for the transportation of goods other than those named. The common law affording no remedy for damages sustained- by the' death of a person, the British Parliament in 1846 passed Lord Campbell’s Act, declaring that the person who would have been liable had not death ensued should be liable whenever the death was caused by wrongful act, neglect, or default.

The act of February 2, 1860, provided that:

“Whensoever the death of any person may be caused by wrongful act, neglect, unskillful-hess or default, and the act, neglect, unskillfulness or default is such as would (if death had not ensued) have entitled the party injured, to maintain an action for such injury, then and in every such case the person who would have been liable if death had not ensued, shall be liable to an action for damages, notwithstanding the death of the person injured, and although the death shall have been caused under such circumstances as amount, in law, to a felony.”

Thus Texas adopted the substance of Lord Campbell’s Act. The act of 1860 specifically provided further for liability—

“if the life of any person is lost by reason of the negligence or carelessness of the proprietor or proprietors, owner, charterer, or hirer of any railroad, steamboat, stagecoach, or other vehicle for’'the conveyance of goods or passengers, or by the unfitness, gross negligence or carelessness of their servants or agents.” Acts of -I860, p. 32; 4 Gammel’s Laws of Texas, p. 1394.

Section 26 of article 16 of the Constitution of 1876 provides:

“Every person, corporation or company that may commit a homicide, through willful act or omission or gross neglect, shall be responsible in exemplary damages to the surviving husband, widow, heirs of his or her body, or such of them as there may be, without regard to any criminal proceeding that may or may not be had in relation to the. homicide.”

An act approved March 25, 1887, amended the I860 act so as to read:

“An action for actual damages on account of injuries causing the death of any person may be brought in the following cases:
“1. When the death of any person is caused by the negligence or carelessness of the proprietor, owner, charterer, or hirer of any railroad, steamboat, stagecoach, or other vehicle for the conveyance of goods or passengers, or by the unfitness, negligence, or carelessness of their servants or agents.
“2. When the death of any person is caused by the wrongful act, negligence, unskillfulness, or default of another.”

Acts of 1887, p. 44; 9 Gammel’s Laws of Texas, p. 842.

' The 1887 act was amended by chapter 7, p. 5, of the Acts of 1892, Special Session, to embrace liability when death was due to the negligence of receivers or other persons in charge of any railroad, their servants, or agents, and as thus amended was carried into article 4694 of the Revised Statutes of 1911.

The first subdivision of article 4694, as amended by the act of 1913, provided for an action for actual damages on account of injuries causing death — ■

“when the death of any person is caused by the neglect or carelessness of the proprietor, owner, charterer or hirer of any railroad, steamboat, stagecoach or other vehicle for the conveyance of goods, passengers, or by the unfitness, neglect or carelessness of their servants or agents; when the death of any person is caused by the neglect or carelessness of the receiver or receivers, or other person or persons in charge or control of any railroad, or their servants or agents; the liability of receivers shall extend to cases in which the death may be caused by reason of the bad or unsafe condition of .the 'railroad or machinery or other reason or cause by which an action may be brought for damages on account of-injuries, the same as if said railroad was being operated by the railroad company.” Acts of 1913, c. 143, p. 288 (Vernon’s Sayles’ Ann. Civ. St. 1914, art. 4694).

The earlier decisions disclose that many of our judges have been inclined to confine the liability created by this section to deaths caused by the negligence of common carriers, their agents, or servants. Judge Gaines in delivering the opinion in Hendrick v. Walton, 69 Tex. 196, 6 S. W. 749, refers to the first section of the 1860 act as though it related alone to common carriers. The opinion for the majority of the court in M., K. & T. Ry. Co. v. Freeman, 97 Tex. 400, 79 S. W. 9, 1 Ann. Cas. 481, by Judge Williams, discloses a similar view. Expressions of like tenor occur in opinions of' the Courts of Civil Appeals in Fisher v. Texas Telephone Co., 34 Tex. Civ. App. 308, 79 S. W. 50, where Justice Key says the first subdivision of the death statute “is limited to common carriers,” and in Ott v. Johnson, 101 S. W. 534, where Justice Gill states that the statute “manifestly was designed to apply to common carriers.” The views reflected by these opinions were followed by Judge Maxey in deciding the case of Pulom v. Jacob Dold Packing Co. (C. C.) 182 F. 359.

The case of Sullivan-Sanford Lumber Co. v. Watson, 106 Tex. 4, 155 S. W. 179, presented the question whether a lumber company “engaged in the business of manufacturing and selling lumber” was liable for a death caused by the negligence of the lumber company in operating a locomotive and cars for- the transportation of logs from the forest to the mill. The opinion states:

“No passengers were carried except the em-ployés of appellant [the lumber company] and those engaged in cutting timber, or some, one seeking employment from the timber contractor. Nor was any freight carried except that belonging to the appellant, or to its timber contractor.”

The court decided:

“The private corporation which owned and operated the logging road on which the death of John A. Watson occurred was ‘owner’ of that road and liable under the statute above copied to the same extent as any other corporation or person would be” — citing Cunningham v. Neal, 101 Tex. 338, 107 S. W. 539.

In Cunningham v. Neal the court had determined that a private corporation owning and operating sugar mills and refineries and in connection therewith locomotives and cars for the conveyance of its own materials and products was a “railroad” within the meaning of the statute repealing the fellow servant’s rule in actions for the recovery of damages for injuries to employes of every person, receiver or corporation operating a railroad. The court said:

“The statute does not prescribe that the corporation which operates the railroad shall be organized for that purpose, neither does it require that the operation of the railroad shall be for the purpose of carrying freight and passengers for the public in order to subject the operator to the liabilities prescribed by the statute.”

The reason for the decision was succinctly stated thus:

“The same dangers attended the operation of the machinery upon the private road of Cunningham & Co., as would have' attended the operation of the same machinery upon the track of the common carrier. Therefore the. injury here complained of is embraced within the letter and spirit of the statute above quoted.”

The Supreme Court declared in National Bank v. Hanks, 104 Tex. 328, 137 S. W. 1120, Ann. Cas. 1914B, 368, citing Lipscomb v. Railway & Express Co., 95 Tex. 5, 64 S. W. 923, 55 L. R. A. 869, 93 Am. St. Rep. 804, that whether the specified proprietor, owner, charterer or hirer was a common carrier did not furnish the basis for the classification made by the statute. Applying the ejusdem generis rule, the court determined that the owners of passenger elevators were not liable for death inflicted by negligence of their servants. The opinion gives the following as the proper -interpretation of the statute:

“We think, bearing in mind the rules above noted and having in view the objects and purposes of the law, that liability is to be adjudged as if the statute in question, in respect to the general words, read as follows: ‘Or other like vehicles for the conveyance of goods and passengers.’ * * * It was meant, we think, to apply to agencies and carriers transporting passengers and freight from some point of origin to some more or less distant point of destination. This is of necessity implied in every act of carriage of freight or passengers by either railroad, steamboat or stagecoach. In the nature of things, their engagements .and works of transportation never contemplated a mere journey from one story of a building to another and to us it seems clear that when the Legisla-tui-e used the term ‘other vehicle’ it meant a vehicle performing, substantially at least, the same office and serving the same necessities.” National Bank v. Hanks, 104 Tex. 328, 137 S. W. 1125, Ann. Cas. 1914B, 368.

The Court of Civil Appeals at Galveston, in following Sullivan-Sanford Lumber Co. v. Watson, and Cunningham v. Neal, supra, as well as Lodwick Lumber Co. v. Taylor, 39 Tex. Civ. App. 302, 87 S. W. 358, announced:

‘‘■It is not necessary, in order to fix liability under this subdivision of the statute, to allege or prove that the business of the owner of the vehicle was that of a public or common carrier. The purpose of the statute is broad, and it was not enacted for the protection only of passenger's and shippers, but was manifestly designated to protect the public by giving a right of action for injuries resulting in death regardless of whether the deceased was a passenger or the owner of the vehicle was operating it as a common carrier, and it would largely defeat the manifest purpose of the statute if it should be construed to give a cause of action only against common carriers, and our courts have not so construed it.” Sid Westheimer Co. v. Piner (Tex. Civ. App.) 240 S. W. 987; Id. (Tex. Com. App.) 263 S. W. 578.

If it were an original question the court would be inclined to follow the intimations in the earlier opinions that the statute was not designed to extend liability for deaths due to negligence of agents or servants to principals or employers not engaged in business as common carriers. But, having had the-benefit of these intimations, the court definitely refused to follow same. So some other basis for the Legislature’s classification must be sought if the later decisions are to stand. We do not feel that we would be justified in overruling these decisions, and, looking to the basis of classification adopted by them, that is to say, the hazards to which public and employes are subjected by certain instrumentalities of transportation, when regularly employed in commerce, we cannot say that a motor truck engaged from day to day in moving the petroleum company’s products is not one of the vehicles specified in the statute for the conveyance of goods like railroad trains, steamboats, and stagecoaches. The motor truck has become, of course, a common vehicle for transporting merchandise along public roads. When regularly so employed, it does subject its operators and all in its path to like hazards as does the steam, electric or motor train, the steamboat, or the stagecoach. The owner of a truck so used comes within the letter of the statute, and such owner comes within its spirit as declared'in the later decisions, which we will not disturb.

We conclude there was no error in the action of the Court of Civil Appeals in affirming the judgment against the petroleum company nor in rendering judgment for the railway company.

It is ordered that the judgment of the Court of Civil Appeals be in all things affirmed. 
      (S=3For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
     