G.H. S.A. Ry. Co. v. Daniels , 9 Tex. Civ. App. 253 ( 1894 )

We have thoroughly reinvestigated this case, in deference to the motion for rehearing, and we are convinced that a proper disposition has been made of this case. There is no statute in Texas requiring a railroad company to build safe bridges and keep the same in safe condition, and the duty of using ordinary care in the construction of bridges, roads, etc., arises from the charter given by the State. An act to be negligent per se must be done contrary to statutory duty, or must be so palpably in disregard of common prudence that a court would not hesitate to say that it constituted negligence. Railway v. Gasscamp,69 Tex. 545; Chatham v. Jones, 69 Tex. 744. The question as to whether the bridge was properly constructed was hotly contested, and the testimony was quite conflicting. The charge given by the District Court is open to another objection. It instructs the jury that if the bridge was unsafe, and the railroad company knew or could have known by the exercise of reasonable care and diligence of the defect in the bridge, that it would be guilty of negligence, without reference to any effort it may have made to remedy the defect. In this connection, appellant asked the following charge:

"14. Even if the jury believe from the evidence that said bridge number 544 was defective in its original construction, yet if the jury believe from the evidence that defendant in the original construction of said bridge used ordinary care to see that said bridge was so constructed as to be reasonably safe for the purposes for which it was intended, and if they further believe from the evidence, that after its construction the defendant had employed careful and competent inspectors, and that such inspectors did exercise ordinary care in inspecting such bridge, and did exercise ordinary care to see that such bridge was kept in reasonably safe condition for the purposes for which it was intended, then you will find for defendant."

This charge should have been given. We are of the opinion, also, that special charges numbers 2, 5, 7, and 8, requested by appellee, were erroneous and should not have been given. The duty required of appellant in constructing and keeping its bridges in repair is more onerous than is required of it by law. The requested charges require safe structures, and not the exercise of care to secure safe structures. In the eighth requested charge the liability of appellant is made to depend upon its failure "to construct its road and bridge properly, and with proper foundation to withstand" rains and freshets.

The motion for rehearing is overruled.

Motion overruled.