The Austin weekly statesman. (Austin, Tex.) 1883-1898, 1895-11-21
OPINIONS.

OP1NlONS.
W Following are the opinions delivered by
he supreme court yesterday:
M Taylor, Bastrop and Houston Railway
yompany VS.. G. M. Warner ct al; suit
to recover damages for personal injuries
fesulting in death; from Fayette county,
First district; reversed and remanded
81 Q. M. Warner, joined by her husband,
ALBERT Warner, and Jas. r. Dublin, sued
the railway company to recover damages
for the death of Rowland Dublin, the
minor child of the two first mentioned
< plaintiffs, which death was alleged to
have been caused by the negligence of
the defendant below, in failing to make
and maintain proper crossing at the
intersection of its railway with the wagon
road, between the towns of La Grange
and West Point, in Fayette county.
There was verdict and Judgment in the
trial court in favor of the two first named
plaintiffs and against Dublin, the other
plaintiff. The child was killed by fall
ing from wagon in which he was riding
with his father, Jas. r. Dublin, and his
being run over by wheel of the wagon.
The fall was caused by the dropping of
the wheel into hole or rut in the cross
ing at the railroad. The railroad at
this point was being constructed by sin
dependent contractors" under the super
vision of the company's engineer. The
place where the crossing was made is
4 not on the public road established by the
county authorities, though all of the
travel goes over this crossing, and the
place where the crossing is situated had
been used by the public for road purposes
for 10 or u years.
@. N. Warner and Jas. r. Dublin had
been married and the child which was
killed was the offspring of that mar
riage. They were divorced by decree
of the district court, and the custody of
the child given to the mother. She after
wards married her present husband, Al
bert Warner.
First-The facts found by the court
of civil appeals do not establish that the
dirt road at the point where the accident
occurred was public road within the
meaning of article 4170, Revised Stat
utes, it being neither laid out or main
tained under order of the county court
nor established as a public road by dedi-
cation and use. (S5 Tex, 67) 1t is
true that the road had long been used by
the public, but there was no evidence of
\ dedication by the owner of the land to
Tie use of the public as public high
way. Therefore, the duty did not rest
upon the railway company as matter
OF law to construct crossing, at the in
tersection of it's road Herewith.
The charge of the court upon the duty
OF the defendant to construct crossings at
NuC lhtSlotCllOuo VI I'LL DuDllC highways
/, IS abstractly true, but it assumes that
the road in question was public high
way when the facts fail to show that it
was such highway, either by dedication
OF by the action of the commissioners
court. Taken together, the two para
graphs of the courts charge on this ques-
ton must have been understood by the
Jury to mean that the court instructed
them that this was a public highway,
within the meaning of the statute and
submitted to them alone the question of
negligence in the construction of the
crossing thereof.
There was evidence sufficient to have
Justified the jury in finding that
the crossing was constructed by the rail
way company, and that it was thereby
made liable by reason of the fact that
it Operated as an invitation for persons
to cross thereon. But this fact is not
SOL clearly established by the undisputed
evidence as to justify us in saying that
the charge given by the court did not
result in injury to the railway company.
tSS Tex, 1888; 60 Tex, 344). For this
error in the cause the judgment must be
reversed and the cause remanded.
rs Second-Every person who is found
performing the work of another is pre-
sumed to be in employment of the person
whose work is being done, and if the
facts be such as to exempt the owner
Qf the property being improved from liza
biiity for the acts of those performing
such work, it developes upon him who
claims such exemption to make proof of
the terms of the contract, showing that
the relation of master and servant did
not exist. Therefore the special charge
on This subject was erroneous and was
PROPERLY refused.
Ihird-If the dirt road at the point
Wucre the railroad intersected it was
pubic road either by dedication or con-
deHpation, the defendant would be re-
1'oIsible for the negligence of the con-
<raHtors in making the crossing whether
tlIci1 contractors were under it's control
o. not. The company could not devolve
upon another duty imposed upon it by
iH~> SO as to exempt it from liability in
cAfeO of failure to perform that duty.
toQrth-If the road in question was
moi d public highway, then if the COM
pnnY constructed a crossing thereon it