Gulf, C. & S. F. Ry. Co. v. Benford

• Decision Date: 20 February 1891
• Citation: 15 S.W. 561
• Court: Texas Supreme Court
• Parties: GULF, C. & S. F. RY. CO. v. BENFORD.

15 S.W. 561

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

Supreme Court of Texas.

February 20, 1891.

Appeal from district court, Galveston county.

J. W. Terry, for appellant. W. B. Denson, for appellee.

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 "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 fact 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 liable; but Patrick is not shown to have been vested with any representative character other than that of an overseer or boss, whose duty it was to superintend the loading of iron. Plaintiff testified that, "about ten minutes before I was hurt the electric light under the shed where we were working went out. A few minutes after it went out, Andrew Blackburn, one of the crowd with whom I was working, called out to Patrick, who had charge of the lights, and said we did not have enough light, and that if we continued to work there without the light some one would get hurt. Patrick said to Blackburn, `Go ahead and I will fix the light.' * * * I knew it was dangerous to handle the iron without a good light, but Patrick, who was Mr. Whitney's head man over us, promised to fix the light, and I expected that he would do so until I was hurt." Another witness stated: "We knew it was dangerous to load iron without a better light, but did not want to quit work." The evidence shows that neither appellant nor its employes had any control of the electric light, but that this was owned and controlled by the "Electric Light Company," who furnished the light which went out and others to the steamship company. Appellant, however, had one dozen railroad lamps, some of which were in use when the accident occurred, and these were lighted by Patrick before the accident. The evidence for defendant tends to rebut all the material facts testified to by witnesses for plaintiffs, except the fact of his injury; tends to show that the light did not go out; that there was other sufficient light; that Patrick made no promise to restore the light; and that Whitney made no noise, and was not present when the accident occurred.

Many questions are raised on the ruling of the court, overruling exceptions to the petition, and on the ruling of the court in refusing a new trial, but most of these may be considered under an assignment which questions the correctness of a charge given by the court. That charge was as follows: "If you believe from the evidence that the going out of the electric light was the cause of the plaintiff's injury, and that it was unsafe to handle the railroad iron after the light went out, and that the defendant's boss of plaintiff was informed that the light was out, and promised to attend to restoring the necessary light, and that the plaintiff continued to work by reason of the boss' promise to remedy the defect in the light, and that the boss did not in a reasonable time restore the light, and that the boss was guilty of negligence in not remedying the defect of light, and that such negligence was the cause of plaintiff's injuries, then the plaintiff would be entitled to recover of defendant for damages for such injury." This charge assumes that the promise of a person termed a "boss" to renew the light would fix liability on the railway company if a failure to renew it would constitute negligence, without reference to the contributory negligence of appellee. We do not understand that it has ever been held that the promise of the master to repair a defective machine or implement used in his business, and known by both to be dangerous, will relieve the servant from the ordinary result of contributory negligence on his own part; though cases may be found in which stress was laid on the fact that such a promise...