
    The Texas & P. R’y Co. v. Laura Kirk.
    (Case No. 1781.)
    1. Case followed — Domicile of railway corporation — Jurisdiction.— Tex. & P. R’y Co. v. McAllister, 59 Tex., 349, followed and approved.
    2. Evidence—Damages.— In a suit for damages against a railway company for personal injuries caused by the negligence of the company, and resulting from its car being thrown from the track by a rail broken several days before the injury, and a part of which was missing, it is not necessary that both defects should be proved to authorize a recovery. The substance of the issue being, Was the track of the appellant’s road unsound and unsafe by reason of the defective rail ? it was sufficient to prove the substance of the issue.
    3. Case approved.— Pittsburg, Ft. W. & C. R’y Co. v. Ruby, 38 Ind., 305, cited and approved.
    4. Fellow-servant — Damages.—Though one be an employee within the meaning of the rule which ordinarily prevents a servant from claiming damages from the master for an injury received from the negligence of a servant in the common employment, the duty of a railway company to have a sound track is one from which it cannot excuse itself, and when, by reason of its failure, such an employee is injured, the fact that some other servants of the company had failed to construct or keep in repair the track cannot relieve it from liability.
    5. Pleading.— It is no ground for the reversal of the judgment that the petition of the plaintiff who recovered the judgment contained conclusions of the pleader regarding facts pleaded therein, if the facts from which the conclusions were drawn are fully stated, and justify the conclusions if true.
    Appeal from Harrison. Tried below before the Hon. A. J. Booty.
    Suit brought in the district court of Harrison county by George Anna Kirk, a citizen of the state of Virginia, and Laura Kirk, on the 23d day of March, 1881, for damages, wrongs and injuries alleged to have been done them by reason of the death of William Garth Kirk, husband of Laura Kirk and son of George Anna Kirk. The plaintiffs alleged that Wm. Garth Kirk came to his death by reason of the negligence of appellant’s agents and servants. The petition averred that, on the 6th of November, 1880, Wm. Garth Kirk was traveling as a passenger on appellant’s road, from Minneola to Marshall, Texas; that while Kirk was traveling on the train, and when the same reached Lake Fork station, and after going a short distance beyond it, the train of cars was, by reason of the gross neglect and criminal carelessness of defendant, its agents and servants, thrown from the track and broken to pieces, and Wm. Garth Kirk was severely wounded and injured, by reason of which he died. Plaintiffs averred that the accident was caused by a broken rail in defendant’s road-bed, a piece of which, three feet long, was missing; that the road-bed was greatly out of repair, and had been out of repair for a long time previous to the 6th of November. That defendant, by the exercise of ordinary care and diligence, could have known of the bad condition of its road, and could have prevented the accident. The plaintiff claimed actual and exemplary damages in the sum of §100,000.
    Between the institution of this suit and the trial of the same, the death of George Anna Kirk was suggested, and the suit was after-wards prosecuted in the name of Laura Kirk alone.
    Answer, general and special exceptions, and general denial; that the iron rails and cross-ties used by defendant for supporting its trains were of the most substantial character; that the iron rails were purchased from first class manufactories and were manufactured according to the most approved pattern; that the servants employed by defendant in running its trains were able, competent, skilful men; that the rail alleged to have been broken was apparently sound in every particular and no defects whatever were visible; that a short time previous to the wreck, the track was carefully inspected by a skilful agent appointed by defendant and found to be in good condition, and all rails that were loose or out of repair were carefully adjusted to the road-bed. Defendant further alleged that the accident was caused, if at all, by reason of a severe and sudden cold spell which occurred about the 6th of November and caused the rails in the road to become brittle and more liable to break, and that if the rail broke at all, it ivas by reason of the cold spell and not on account of the negligence of defendant or its servants. On the 13th of May, 1881, defendant filed its petition to remove this cause to the United States court at Jefferson, which petition was accompanied by the proper bond. The bond was approved by the court and the petition overruled and denied on the 16th of May, 1881, to which ruling defendant excepted.
    The appellant, in its petition for the removal of the cause to the circuit court of the United States, alleged that it was a corporation created by act of congress of the United States; that it was not a banking corporation, and that it had a defense to the suit arising under the laws of the United States, to wit, its act of incorporation, and that it was a citizen of the state of Pennsylvania and had its domicile in that state.
    Appellee filed grounds of objection to the petition for removal, which were substantially as follows: That the petition was insufficient in law; that it presented no facts that constituted a defense, arising under the constitution and laws of the United States, to this action; that the allegation of defendant’s having its domicile in Pennsylvania did not make it a citizen of that state, congress having no right to create an artificial citizen of a state; that any law of the United States conferring special jurisdictional privileges on corporations created by act of congress was unconstitutional and void; that the government of the United States possessed no constitutional authority to create a corporation to construct and operate a railroad in a state; that an act of congress authorizing the removal of a cause from a state to a United States court on the ground that the defendant has a defense arising under the constitution and laws of the United States, without requiring a statement of the facts constituting a defense, is unconstitutional and void; that appellant is, for jurisdictional purposes, a consolidated Texas corporation, and estopped from denying that it is such by reason of the following acts of the legislature of Texas, viz.: first, an act entitled “An act to encourage the speedy construction of a railway through the state of Texas to the Pacific ocean,” passed May 24, 1871; second, an act entitled “ An act amendatory of and supplementary to an act entitled ‘An act to encourage the speedy construction of a railway through the state of Texas to the Pacific ocean,’ passed May 24, 1871,” passed November 21, 1871; third, an act entitled “An act to define the rights of the Texas & Pacific Railway Company within the state of Texas, in order to encourage the speedy construction of a railway through the state of Texas to the Pacific ocean,” passed May 2, 1873; that the defendant had not in fact any defense arising under the constitution and laws of the United States as shown by the record; and that the effort to remove was an attempt to perpetrate a fraud on the jurisdiction of the court.
    The facts in this case are not presented as required by the rules; the questions to and answers by witnesses are given in full. They seem to establish clearly the charge of gross negligence.
    Verdict and judgment for appellee for $12,500 actual damages.
    
      Turner & Stewart, for appellant,
    on their proposition that the, court erred in not removing the cause to the United States circuit court, cited: Union Pacific R’y Co. v. Fisk, 8 Blatch., 362; Hatch v. Chicago, R. I. & Pacific R. R. Co., 6 Blatch., 105; Fisk v. U. P. R. R. Co., 8 Blatch., 243; Dennistown v. Draper, 5 Blatch., 336; Shaft v. Phoenix Ins. Co., 67 N. Y., 544; Bell v. Dix, 49 N. Y., 232; Berry v. R. R. Co., 64 Mo., 533; Hereford v. Ætna Insurance Co., 42 Mo., 148; Osgood v. R. R. Co., 7 C. L. N., 241; Kern v. Huidekoper, 13 Otto, 485.
    That the deceased was a fellow-servant and the company not responsible, they cited: Laning v. N. Y. C. R. R. Co., 10 Am. Rep., 417; Farwell v. B. & W. R. R. Co., 4 Met., 49.
    
      F. B. Sexton and W. & N. A. Steadman, for appellee,
    cited on jurisdiction: Whitton v. R. R. Co., 13 Wall., 270; Muller v. Dows, 4 Otto, 444; Cissell v. McDonald, Reporter, vol. 7, 553; SlaughterHouse Cases, 16 Wall., 36; Stephenson v. Tex. & Pac. R’y Co., 42 Tex., 162; “An act to extend the time for the construction of works of internal improvement,” passed March 15, 1875 — a general law; also Wright v. Hawkins, 28 Tex., 452; Keyes v. Gold Washing & Water Co., 6 Otto, 199; Const. United States, art. 1, sec. 8, art. 3, sec. 2; Cooleyls Const. Lira., pp. 173, 391; United States v. Reese et al., 2 Otto, 215; United States v. Cruikshank, 2 Otto, 542.
   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.  