10 S.W. 529 (Tex. 1888), St. Louis, A. & T.R. Co. v. Welch

Citation:10 S.W. 529, 72 Tex. 298
Opinion Judge:GAINES, J.
Party Name:ST. LOUIS, A. & T. RY. CO. v. WELCH.
Attorney:N. Webb Finley, for appellant. [72 Tex. 299] John M. Duncan, for appellee.
Case Date:December 14, 1888
Court:Supreme Court of Texas
 
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Page 529

10 S.W. 529 (Tex. 1888)

72 Tex. 298

ST. LOUIS, A. & T. RY. CO.

v.

WELCH.

Supreme Court of Texas

December 14, 1888

Appeal from district court, Smith county; FELIX J. McCORD, Judge.

Action by L. Welch against the St. Louis, Arkansas & Texas Railway Company, to recover damages for personal injuries sustained through the alleged negligence of defendant's servants. Defendant appeals from a judgment for plaintiff.

N. Webb Finley, for appellant.

[72 Tex. 299] John M. Duncan, for appellee.

GAINES, J.

This was an action for personal injuries, brought by appellee against appellant. The case made by the plaintiff showed the following facts: The plaintiff was the foreman of a bridge gang in the employment of the defendant company, engaged in putting in and repairing bridges along the line of its road. About 3 o'clock in the morning, on the day of the accident, he was asleep in the bunk of a sleeping car provided by the company for the purpose, which was lying on a side track of the railway in the town of Gilmer. At the time mentioned the employes of the defendant operating a freight train on its road negligently ran the train rapidly upon the side track, and struck the car upon which he was sleeping with such violence that he was thrown from his bunk, and seriously injured. He and the employes who caused the injury were engaged in different departments of the company's road. His employment was in the bridge department, and he received his instructions from the superintendent or management of that department, while the employes on the train were working in the transportation department, and were under the orders of its superintendent. It appears from the testimony that the plaintiff was subject to the orders of the company to go out on duty at any time. [72 Tex. 300] Without referring to the assignments of error, it is sufficient to say here that the two questions presented by the record are whether the plaintiff and the employes of the train are to be deemed fellowservants, in the sense that precludes him from a recovery of the company for injuries inflicted by reason of their negligence; and, if so, whether he is to be considered as on duty at the time of the accident.

Page 530

Upon the question, who are to be held 'fellow-servants,' in the legal sense of that term, there is great contrariety of judicial opinion. The doctrine that one fellow-servant cannot recover of the master for injuries inflicted through the negligence of his fellow-servant is of comparatively recent origin. It was first announced in 1837, in the English court of exchequer, in the case of Priestly v. Fowler, 3 Mees. & W. 1. The supreme court of South Carolina laid down the same rule in the case of Murray v. Railroad Co., 1 McMul. 385. This case was decided in 1841, and is the...

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