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

• Decision Date: 22 December 1892
• Citation: 21 S.W. 706
• Court: Texas Court of Appeals
• Parties: GULF, C. & S. F. RY. CO. v. SCHWABBE.

21 S.W. 706

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

Court of Civil Appeals of Texas.

December 22, 1892.

Appeal from district court, Grimes county; Norman G. Kittrell, Judge.

Action by Henry Sch wabbe against the Gulf, Colorado & Santa Fe Railway Company for personal injuries received by plaintiff in coupling cars while in defendant's employ as an engine wiper and night watchman. From a judgment for plaintiff, defendant appeals. Reversed.

J. W. Terry and C. K. Lee, for appellant. H. H. Boone, for appellee.

GARRETT, C. J.

This action was brought by the appellee in the district court of Grimes county, March 17, 1890, to recover of the appellant damages for personal injuries received while appellee was in the employment of appellant as an engine wiper and night watchman in its yard at Navasota, in Grimes county, on or about the 4th or 5th of October, 1889. This appeal is from a judgment for the recovery of $3,825 in behalf of the plaintiff below. The injuries were received while the plaintiff was attempting to couple an engine and tender to a coal car in obedience to the direction of one Housh, who was the foreman of defendant's yard at Navasota, and at the time of the injury was operating the engine. A train was expected in from Conroe on the defendant's line about 1 o'clock A. M., and the foreman, who went to sleep, had told plaintiff to wake him up when the train came in, which plaintiff did. Housh then told Corley, another engine wiper and night watchman, who was working with plaintiff, to throw the switch, and told plaintiff to couple the switch engine to the coal car, while he got on the engine and backed it up to the coal car, so that plaintiff might make the coupling. Plaintiff testified: "Housh backed the engine towards the coal car, and stopped about five feet from it. I hollaed to him to slow a little more back, and he backed the engine a little further to about one and a half feet from the coal car, and stoppd. I then hollaed to him to come a little more back, and he pulled the throttle open, and came back so hard that he caught my left hand, with which I held the link, and shoved it with the link into the draw head of the engine, and mashed it." As foreman of the yard, Housh had the authority to employ and discharge the engine wipers who were under his charge. It was not plaintiff's business to couple cars. For the purpose of switching in the yard, a switch engine is used. It has a sloping tank, so that one can see over the tender, and is safer to switch with than a road engine. The engine used when the accident occurred was an ordinary road engine. Plaintiff knew that switch engines were safer than road engines, and that coupling cars was dangerous work.

Plaintiff's right of recovery is based on two grounds: (1) The incompetency or negligence of the foreman, Housh; and (2) the use by the defendant of a common road engine, instead of a switch engine; and, in the first instance, that it might result either from the negligence of the defendant, treating Housh as the fellow servant of plaintiff, in selecting and employing its servants, or, treating Housh as the vice principal, from the negligence of Housh in pulling open the throttle, and backing the engine with too much force. On the trial of the case the court, in its charge to the jury, which is the basis of the second assignment of error, seems at first to have given an instruction on the theory that Housh was the fellow servant of the plaintiff; but the jury were afterwards instructed that Housh was a vice principal, and not the fellow servant of plaintiff. But the second assignment questions the charge for error in requiring too great care of railroad companies in the employment of their servants in furnishing tools and appliances for them to work with. It is as follows: "The railroad company was bound in law to furnish competent and qualified men to handle its engines and trains at the yard at Navasota, and was also bound in law to furnish means and appliances for switching trains which experienced railroad men had found were safest and best adapted for that purpose; and if the company failed or was guilty of negligence in either regard in this paragraph named, and if, from and by reason of said negligence, injury resulted as a direct and proximate consequence thereof, the railroad company is liable." This charge was error. Its effect was to instruct the jury that the failure" to furnish competent and qualified men to handle its engines and trains at the yard at Navasota," and "to furnish means and appliances for switching trains which experienced railroad men had found were safest for that purpose," would be negligence on the part of the company. Such is not the rule as has been frequently announced in the decisions of our supreme court. The company is only required, in the selection of its employes, and in furnishing appliances to work with, to use such care and caution in doing so as an ordinarily prudent man would use under the circumstances, and not absolutely to select competent men, or to furnish safe appliances. Railway Co. v. Wells, 81 Tex. 685, 17 S. W. Rep. 511; Railway Co. v. Bell, 75 Tex. 50, 12 S. W. Rep. 321. That the use of a road engine was more dangerous than a switch engine was a fact equally as well known to plaintiff as to Housh, and the danger in its use was patent to the plaintiff; and, such being the case, the plaintiff would not be entitled to...