Allen v. Galveston, H. & S. A. Ry. Co.

• Decision Date: 23 September 1896
• Parties: ALLEN v. GALVESTON, H. & S. A. RY. CO.
• Court: Texas Court of Appeals

Page 171

37 S.W. 171

ALLEN v. GALVESTON, H. & S. A. RY. CO.

Court of Civil Appeals of Texas.

September 23, 1896.

Appeal from district court, Bexar county; Robert B. Green, Judge.

Action by E. A. Allen against the Galveston, Harrisburg & San Antonio Railway Company to recover for personal injuries. Judgment was directed for defendant, and plaintiff appeals. Affirmed.

Powell & Burgess and Fleming, Camp & Camp, for appellant. Upson, Bergstrom & Newton, for appellee.

JAMES, C. J.

It appears that on August 9, 1892, a number of men, among them the plaintiff, were put to work to repair a span of one of appellee's bridges. After working two days, getting the bridge in shape for trains to pass over it, plaintiff and several others were detached and sent off to work at another point, where they remained several days. On the morning of the 17th of August, plaintiff resumed work on the bridge. During his absence work had proceeded on the bridge, and the necessary pile bents and permanent caps, stringers, ties, and rails had been put in. The rails had been fastened to each third or fourth tie, and trains passed over. A plank intended for a guard rail had been laid over the end of the ties, the design of which was to hold the ties in place. This had been laid on in plaintiff's absence, and had not yet been nailed. Some of the ties were out where it was necessary to put in new work, according to plaintiff's testimony. The trestle was unfinished, and plaintiff and one McMickle were engaged in putting cord bolts in the wooden trestle. Plaintiff was a skilled bridge carpenter. There were about 20 men working towards the completion of the structure when plaintiff received his injury, all working under a common foreman. The main bridge crew worked on the bridge from the beginning. About 9 o'clock on the 17th, he and McMickle were ordered by the foreman to go down on a pier to get some bolts which were kept on top of the pier, about four feet below the ties, to put in. They got the bolts, and McMickle got back on the track; but plaintiff, in getting back, stepped on the loose plank, which caused it and the ties to move, and he was thereby thrown to the ground, sustaining severe injuries. The trial judge directed a verdict for the defendant.

The act of 1891, relating to fellow servants, was in force when this accident took place. The plank in question had been laid by the workmen while plaintiff was engaged at other work, and at a time when they were not his fellow servants, in the meaning of said act. The negligence, if any, consisted, not in laying the plank, but in letting it remain unfastened. This was a continuing act of negligence. When plaintiff returned to work on the bridge, he again became a fellow servant of the others there at work; and the continuing act of negligence, that of allowing the plank and ties to remain unfastened, would from that time be attributable...