Eason v. S. & E. T. R'Y Co.

• Decision Date: 09 March 1886
• Docket Number: Case No. 2170.
• Citation: 65 Tex. 577
• Court: Texas Supreme Court
• Parties: S. W. EASON v. S. & E. T. R'Y CO.

65 Tex. 577

S. W. EASON

v.S. & E. T. R'Y CO.

Case No. 2170.

Supreme Court of Texas.

Mar. 9, 1886.

APPEAL from Hardin. Tried below before the Hon. Edwin Hobby.

The opinion states the facts.

Tom J. Russell, for appellant, on volunteers, cited: McIntyre Ry. Co. v. Bolton, N. E. Rep., vol. 1, No. 5, p. 333; Moak's Underwood on Torts, 64.

On contributory negligence, he cited: H. & T. C. Ry. Co. v. Gorbett, 49 Tex. 573; same v. Oram, 49 Tex. 341;Beers v. Housatonic Ry Co., 19 Conn. 566;Bigelow v. Reed, 51 Me. 325;Wilds v. Hudson Ry. Co., 24 N. Y. 430;Hoben v. Burlington Ry. Co., 20 Ia. 562; Hill v. Windsor, 111 Mass. 118; Walsh v. M. V. T. Co, 52 Mo. 434;Lafayette Ry. Co. v. Adams, 26 Ind. 76; Cleveland Ry. Co. v. Elliott, 28 O. 340; M. C. Ry. Co. v. Mason, 51 Miss. 234;I. C. Ry. Co. v. Shultze, 64 Ill. 177;I. C. Ry. Co. v. Godfrey, 71 Ill. 507;L. E. & W. Ry. Co. v. Zoffinger, 107 Ill. 199, N. E. Rep. vol. 3, No. 4, p. 456; cases cited in opinion in Calumet Iron and Steel Co. v. Martin, Supreme Court, Ill., filed Nov. 21, 1885; Wright v. L. & N. W. Ry. Co., Q. B. Div. 252.

E. P. Hill, for appellee, cited: Mayton v. T. & P. Ry. Co., 63 Tex. 77; Wood on Master and Servant, 907, and notes.

WILLIE, CHIEF JUSTICE.

The demurrer to the petition was sustained, it seems, on the ground that the appellant, in performing the duty of a brakeman at the time he was injured, assumed all the risks incident to the position, and, hence, could not recover for an injury caused by the negligence of a fellow servant. This is the law when the injured party is a mere volunteer in the performance of the service. For instance, where one having no interest in the loading or unloading of a car, or in the carriage or delivery of passengers or freight, volunteers to assist in reference to such matters, and, whilst thus engaged, is injured, he stands in the same position as a regular employe engaged in the particular service, so far as any right of recovery for his injuries is concerned. Mayton v. T. & P. Ry. Co., 63 Tex. 77;New Orleans, &c., Ry. Co. v. Harrison, 48 Miss. 112; Flower v. Penn. Ry. Co., 69 Penn. St. 210.

But the case is different when the injured party was acting at the time in furtherance of his own or his master's business. 2 Thompson on Neg., 1045.

Thus, when the owner of freight transported by a railway company was allowed to assist in its delivery, and, in so doing, was injured through the carelessness of the company's servants, it was held that he could recover damages of the company. Holmes v. N. E. Ry. Co., L. R. 4 Exch. 254; Wright v. London, &c., Ry. Co, 1 Q. B. Div. 252.

So, when a passenger on a street car voluntarily assisted the driver in backing the car upon a switch, so that another car coming in an opposite direction could pass, and was injured through the negligence of the driver of the latter car, he was allowed to recover damages of the street car company. McIntyre Ry. Co. v. Bolton, 21 A. and E. R. Cases 501.

The principle upon which a recovery is allowed is this: The injured person is not a volunteer, but engaged at the request or with the permission of the railway's agents in a transaction of interest as well to himself or his master as to the railroad company, and this entitles him to the same protection against the negligence of the company's servants as if he were at the time attending to his own private affairs. Though, performing a service beneficial to both, he is doing so in his own behalf, and not as a servant of the company. Their request or acquiescence gives him the right to perform the service; the fact that he acts in his own behalf, however beneficial his labor may be to the company, gives him the right to be protected against the negligence of the company's servants. The act done by him should be a prudent and reasonable one, and “not a wrongful intermeddling with business in which he had no concern.” McIntyre v. Bolton, supra.

Does the appellant's...