15 S.W. 561 (Tex. 1891), Gulf, C. & S.F. Ry. Co. v. Brentford

Citation:15 S.W. 561, 79 Tex. 619
Opinion Judge:[79 Tex. 622] STAYTON, C.J.
Party Name:GULF, C. & S. F. RY. CO. v. BENFORD.
Attorney:J. W. Terry, for appellant. [79 Tex. 621] B. W. Denson, for appellee.
Case Date:February 20, 1891
Court:Supreme Court of Texas
 
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Page 561

15 S.W. 561 (Tex. 1891)

79 Tex. 619

GULF, C. & S. F. RY. CO.

v.

BENFORD.

Supreme Court of Texas

February 20, 1891

Appeal from district court, Galveston county.

In an action against a railroad company by an employee for injuries sustained while loading iron on a car at night, it appeared that while defendant and others where so engaged an electric light nearby went out, whereupon the men told one P., who was superintending the loading, that the light had gone out, and that it was dangerous to work without it. P. did not represent defendant, but another man then present represented it. P. told the men to go ahead, and that he would fix the light. Defendant had no control over the electric light. Plaintiff continued to work, though he knew that it was dangerous to do so, until the accident. Held, that a charge that if the accident was caused by the going out of the electric light, and that plaintiff was induced to continue at work by P.'s promise to restore it, which he failed to do in a reasonable time, then P. was guilty of negligence, for which defendant was liable, was erroneous, as assuming that P.'s promise to renew the light would fix defendant's liability, and in leaving out of consideration the question whether plaintiff exercised due care in remaining at work after he knew of the danger.

Page 562

J. W. Terry, for appellant.

[79 Tex. 621] B. W. Denson, for appellee.

[79 Tex. 622] STAYTON, C.J.

Appellee brought this action to recover damages for an injury received by him while in the employment of appellant. With others, on the night of November 5, 1889, appellee was engaged in loading a flat-car with railroad iron, each bar of which weighed as much as 1,600 pounds. The iron, as brought from a ship by its servants, was received from their hands by the employes of appellant, eight in number, who would immediately, and without laying it down, carry it to the car on which it was to be placed, when, at a signal to be given by one of them, who was agreed upon, all were expected to throw the rail on the car. The manner in which the operation was performed is thus stated by a witness: 'It is customary to give the signal by the leader calling out the word 'heave' when he went to throw the iron, and all the men would throw at once. The different signals were, 'take iron,' 'raise breast high,' and the third was 'heave." The case which plaintiff's evidence tends to make is that, while the men were engaged in loading iron, an electric light near by went out, and left them with insufficient light, though there were other lights near by; that after this light went out one of the men engaged in loading the iron called to a man by the name of Patrick, telling him that the light was out, and some one would get hurt, and that in reply to this Patrick told them to proceed with their work, and he would have the light renewed; that they continued to load iron after the light went out, and were in the act of throwing a bar of iron on the car, when, not hearing the command to [79 Tex. 623] 'heave,' the man at the end of the bar, where plaintiff was, failed to do so, which caused the bar to fall on plaintiff's foot, and seriously injure it. It was claimed that if the light had been there the men could have seen the motions of their fellows, and would not have been compelled to govern their actions by the signals alone. It was further claimed that one Whitney, who was the representative of appellant, was very noisy, in face so much so as to prevent those engaged in loading iron from hearing the signals. It was shown that Whitney was the representative of the company, for whose negligence in the performance of his duties as such representative appellant would be...

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