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

• Decision Date: 27 April 1886
• Citation: 18 S.W. 444
• Parties: GULF, C. & S. F. RY. CO. v. DORSEY.<SMALL><SUP>1</SUP></SMALL>
• Court: Texas Supreme Court

18 S.W. 444

GULF, C. & S. F. RY. CO. v. DORSEY.¹

Supreme Court of Texas.

April 27, 1886.

Appeal from district court, Tarrant county; M. D. PRIEST, Judge.

A. S. Dorsey sued the Gulf, Colorado & Santa Fe Railroad Company for personal injuries sustained while coupling cars in a certain railroad yard known as the "Union Yard," at Rosenberg Junction. By amendment, plaintiff made the Galveston, Harrisburg & San Antonio Railway Company a co-defendant. The yard at Rosenberg Junction was jointly used by the two defendant companies and by the New York, Texas & Mexican Railway Company. Each company contributed to the maintenance of the yard, and each had its full privileges. Plaintiff was employed as night switchman by the Gulf, Colorado & Santa Fe Company, and it was his duty to act for all tracks and trains in the union yard. Verdict and judgment for plaintiff against the Gulf, Colorado & Santa Fe Railway Company for $15,000. Defendant appeals. Affirmed.

Davis, Beall & Rogers, for appellant. Ball & McCart, for appellee.

ROBERTSON, J.

The plaintiff, when injured, was in the employment and pay of appellant. He was coupling cars of the other defendant on a part of the yard originally belonging to that defendant, but he was doing what the appellant employed him to do. He was the appellant's servant, though he may have been also the servant of the other defendant. In Railway Co. v. McClanahan, reported in 3 Tex. Law Rev. 324, McClanahan, in loading a train belonging to another company, was injured by a defect in the cars, but his master was held liable. In that case the train was on the master's road, but the defect was not in the road. In this case the defect was in the train and the track of the other defendant. The track, however, formed part of a yard used in common by the three companies whose lines intersect at Rosenberg. One company furnished the engine crew, another the fuel for the engine, and the plaintiff was furnished by appellant, all for the service of the several companies in the union yard. Every part of the yard was used in manipulating the trains of each company as the occasion required. Neither of the defendants, each possessing peculiar facilities for making such proof, offered any evidence of the contract between the three companies respecting the common yard. Their duties could only be inferred from the use of the premises. About this use there was no conflict in the evidence. The track on which the plaintiff was injured, under the arrangement between the companies, as evidenced by the use made of it, was as much controlled and owned by appellant as by the other defendant, to which it originally belonged. In Vary v. Railway Co., 42 Iowa, 246, it did not appear whether the plaintiff was injured on the road of the defendant or of the company by which he was employed. His engagement was to serve both companies, very much in the same way with the plaintiff in this case, and it was held that he could sue either or both, and it was said: "This principle is elementary, and needs no citation of cases in its support." That the plaintiff was employed by appellant to work for the three companies interested in the union yard, that the entire yard was used by these companies in common, and that the plaintiff was injured while performing the duties for which the appellant engaged him, were proven and undisputed facts. The court below had the right to assume them to be true, and to advise the jury of the law of the case upon that assumption.

The court does not invade the province of the jury in failing to submit to them issues of fact upon which there is proof upon but one side, and upon which a contrary finding would be wholly unsupported by the evidence. There is really no issue of fact in this state of the evidence.

To these uncontroverted facts the court below correctly applied the law in the charge. Each defendant was a party to the negligence of the other. If either could relieve itself of the duty by a contract that the other should put and keep in proper condition the track where plaintiff was injured, no such contract was proved. Under the evidence, the track was the track of appellant as well as the track of the other defendant. It was defective, and at least partly caused the plaintiff's injury. But if the track was safe, and the injury was caused solely by defects in the cars of the other defendant, then, on the authority of the Vary Case, both defendants were liable, and the appellant could also be held under the principle of the McClanahan Case. The appellant is the last of the three masters that could escape liability. It hired the plaintiff; its yard-master directed his labors. Between it and him the relation of master and servant was created by express contract. That relation between him and the other companies arises by inference from the service and the connection of the companies inter se. There is no complaint that the duties of the...