G., H. S. A. Ry. Co. v. Masterson , 91 Tex. 383 ( 1898 )

This suit was brought by the father and mother of one Joseph P. Masterson to secure damages for injuries resulting in the death of their son, alleged to have been caused by the negligence of the applicant, the Galveston, Harrisburg San Antonio Railway Company. Upon the trial the court instructed a verdict for the defendant. Upon appeal the Court of Civil Appeals held that there was evidence to support the allegations of the petition and that the case should have been submitted to the jury, and reversed the judgment and remanded the cause.

The defendant company applies to this court for a writ of error, and in order to give us jurisdiction states in its petition that judgment of the Court of Civil. Appeals "practically settles the case." We have held that when a cause has been remanded by the Court of Civil Appeals, in order to give this court jurisdiction upon the ground that the judgment of that court settles the case, the applicant must not only so state, but that it must appear from the record that its opinion is conclusive of the case, provided the evidence shall be the same upon another trial.

Does the decision of the Court of Civil Appeals practically settle the case? The allegations and proof were that the injury was caused by the act of one Church in moving an engine and train. Church was a switchman of the applicant, the defendant in the trial court. The defendant contended that Church in moving the train acted without the scope of his authority, and also that he was a fellow-servant of the deceased, and that for both reasons it was not responsible for the injury. The Court of Civil Appeals hold in effect that, under the evidence, Church was not the fellow-servant of Masterson, and also that the company is responsible for his act if in fact it was negligent. This settles two issues in the case provided the evidence is the same upon another trial. But does it settle the question of negligence? We think not. Their conclusion is merely, that under the evidence the case should have been submitted to the jury. Under their ruling, it is a question for the jury whether the conduct of Church was negligent or not, and a verdict might be given either for the plaintiffs or the defendant. Evidently the decision of the Court of Civil Appeals does not settle the case, and we have no jurisdiction to grant a writ of error to their judgment. Therefore the application is dismissed.

Application dismissed.