St. Louis, A. & T. Ry. Co. v. Welch

• Decision Date: 14 December 1888
• Citation: 10 S.W. 529
• Parties: ST. LOUIS, A. & T. RY. CO. <I>v.</I> WELCH.
• Court: Texas Supreme Court

10 S.W. 529

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. 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. 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 fellow-servants, 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.

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 first case in which the rule was applied in this country. The opinion shows that the court were unaware of the decision in Priestly v. Fowler, supra. In 1842 the subject was very carefully considered by the supreme court of Massachusetts in the case of Farwell v. Railroad Corp., 4 Metc. 49, and the same doctrine was announced. This has become the leading case, and has been rigidly followed by the courts of England and by a majority of the courts in this country. The question of persons employed in different departments of the same general business of the common master was considered in that case, and in discussing it Chief Justice SHAW, who delivered the opinion, uses this language: "It was strongly pressed in argument that although this might be so, where two or more servants are employed in the same department of duty, where each can exert some influence over the conduct of the other, and thus to some extent provide for his own security, yet that it could not apply where two or more are employed in different departments of duty, at a distance from each other, and where one can in no degree influence or control the conduct of another. But we think this is founded upon a supposed distinction, on which it would be extremely difficult to establish a practical rule. When the object to be accomplished is one and the same, when the employers are the same, and when the several persons employed derive their authority and compensation from the same source, it would be extremely difficult to distinguish what constitutes one department and what a distinct department of duty."

The language employed in the last sentence quoted has been generally used by courts and text writers as the basis of the definition of the term "fellow-servants." Substantially the same language has been frequently employed by our own courts in defining the term. Railway Co. v. Rider, 62 Tex. 267; Railway Co. v. Harrington, Id. 597; Railway Co. v. Watts, 63 Tex. 549.

The rule so announced in Farwell's Case has, as previously intimated, been followed closely in the courts of England, and generally in the American courts, in its broadest application. Latterly there has been shown some disposition to modify the doctrine, but it has mainly been in the direction of making a distinction between servants of a different grade. The case of Railroad Co. v. Ross, 112 U. S. 377, 5 Sup. Ct. Rep. 184, is a case of this latter character. As to service in different departments of the same common employment, there is less conflict of authority. In the courts of a few of the states it has been held that the employes in different branches of the same general employment are not fellow-servants. This is the rule in Illinois, (Railroad Co. v. Moranda, 108 Ill. 576,) in Tennessee, (Railroad Co. v. Jones, 9 Heisk. 27;) in Kentucky, (Railroad Co. v. Cavens, 9 Bush, 559;) in Georgia, (Cooper v. Mullins, 30 Ga. 150;) and perhaps in Virginia, (Moon v. Railroad Co., 78 Va. 745.) This was the ruling in Indiana in the earlier decisions, (Gillenwater v. Railroad Co., 5 Ind. 339; Fitzpatrick v. Railroad Co., 7 Ind. 436;) but these cases have since been overruled, (Railway Co. v. Arnold, 31 Ind. 174.) Judge Thompson, in his work on Negligence, lays this down as the "exceptional" doctrine. 2 Thomp. Neg. 1026. Our researches have satisfied us that this is correct, and...