This is a suit by the mother, widow and minor children of Sam Bradt against the International Great Northern Railroad Company and Thomas Freeman, receiver thereof, for damages resulting from his death. The cause was tried by jury and resulted in a verdict and judgment in favor of appellees for $20,000, apportioned as follows: To the widow, Mrs. Minnie Lou Bradt, $7,000; to the mother, Mrs. Jennie Bradt, $3,000, and to each of the two minors, $5,000. No complaint is made as to the amount of the verdict.
The facts disclose that Sam Bradt, an engineer in the service of the railroad company, while in the faithful discharge of his duties, was so injured that he died, the injuries resulting from the derailment of the locomotive which he was running, through the negligence of the railroad company. Freeman was afterwards appointed receiver by a federal court.
The first, second and third assignments of error attack the action of the trial court in overruling the general and certain special exceptions to the petition presented by the receiver. The position is taken that the receiver could not be sued without the consent of the federal court by which the receivership was created, and that the cause of action having accrued prior to the appointment of the receiver, he was not a necessary or proper party. It was alleged in the petition that permission to sue the receiver had been obtained from the court appointing him, and there was no plea under oath denying the capacity or right of appellees to sue, and the allegation would be sufficient without proof. The exceptions attacked the power of the appellees to sue without an order from the federal court, and they were not verified by oath, and in the absence of such verification the allegation will be taken as true. Article 1265, Rev. Stats.; Young v. Meredith, 38 Texas Civ. App. 59[38 Tex. Civ. App. 59].
The fifth assignment of error is overruled. The petition alleged, *Page 86 among other things, that the railroad company had failed to inspect its track and switch, "and negligently and recklessly failed to discover the state of the switch and provide any warning to the said Sam Bradt of the fatally dangerous condition thereof." In connection therewith, appellees were permitted to prove that colored lights had been used at switches by the railroad company to show how the switch was set, and that they were efficacious, but failed to have the switch in question so guarded. We think the allegation of a failure to give warning of the condition of the switch at night was sufficient to justify the admission of proof of a failure to have lights at the switch as had been the custom. In addition, appellants alleged that it was the duty of deceased engineer to ascertain whether the switch was properly set, and that certain targets, half red and half white, gave warning of the condition of the switch, and charged deceased with negligence in not heeding the warning, and appellees, in answer to that charge, had the right to prove the failure to have the proper signals at the switch, which at night would consist of red and white lights. The evidence was admissible.
The evidence raised the issue as to the switch having been left open by some one in possession of a switch key, and it appeared that no one but employes had such keys. There was no lock on the switch, the displacement of which caused the derailment, but the lock securely locked was found near the switch, and the switch was partly thrown. There was nothing to indicate the intervention of an outside party. Under such circumstances it was not error to charge that negligence of a servant was negligence of the master. Appellees had charged that the death of Sam Bradt had been caused by the negligence of the railroad company, and if there was any evidence tending to show that the negligence was that of a servant of the company the court was authorized to instruct the jury that such negligence was the negligence of the master.
The evidence showed that Sam Bradt was an engineer in the employment of the railroad company, and came to his death by a derailment of his train which was caused by a misplaced, unlocked switch. He was not shown to have been guilty of negligence. It was about 2:30 o'clock in the morning when the wreck occurred. There is no dispute that the switch was unlocked. Whose business was it to keep it in a secure condition? Undoubtedly it was the duty of the railroad company. It was negligence to have the switch in such condition that employes, in discharge of their duty of running trains, would rush to destruction. When appellees proved that the death of Sam Bradt had been caused by a displaced, unlocked switch, they made a case of negligence against the railroad company, because the duty rested on it to furnish safe appliances with which its employes could perform their duties, and the burden rested on it to account for the unsafe condition of the switch. It failed to do so, and the jury were justified in finding it guilty of negligence. The judgment is affirmed.
Affirmed.
Writ of error refused. *Page 87