Austin & N. W. R. Co. v. Beatty

• Decision Date: 30 April 1889
• Citation: 11 S.W. 858
• Parties: AUSTIN & N. W. R. CO. <I>v.</I> BEATTY.
• Court: Texas Supreme Court

11 S.W. 858

AUSTIN & N. W. R. CO.

v.BEATTY.

Supreme Court of Texas.

April 30, 1889.

Commissioners' decision. Appeal from district court, Travis county.

Action by Joseph Beatty against the Austin & Northwestern Railroad Company. Defendant appeals.

Maxey & Fisher, for appellant.Rector, Moore & Thomson, for appellee.

ACKER, J

Joseph Beatty was employed by appellant to place numbers upon the bridges on its road between Austin and Burnet.A special train, consisting of a locomotive, several flat-cars, and a passenger coach attached to the rear end, went out from Austin under the personal control of Leitnaker, appellant's general superintendent, carrying appellee and other employés.The train was stopped about 60 or 80 yards from bridge 8, and Leitnaker directed appellee to go forward to the bridge, and nail the board upon which the bridge number was painted on the end of the cap of the bridge.Appellee took his position on the end of the cap, and began nailing the board to it, when Leitnaker directed the train to move forward.Appellee finished nailing the board while the flat-cars were passing him, threw his hatchet onto one of them, and when the front end of the passenger coach reached him he caught hold of the hand-rail, and attempted to enter the coach.He lost his hold, and fell 10 or 12 feet to the ground, sustaining injuries.This suit was brought to recover damages for these injuries, which, it was alleged, were caused by the negligence and want of due care upon the part of Superintendent Leitnaker.Appellee answered by exceptions, general denial, and specially pleaded contributory negligence and negligence of fellow-servant.The trial was by jury, and resulted in a verdict and judgment for appellee for $1,000 and costs.We do not understand any question to be raised as to whether appellee and Leitnaker were fellow-servants, such as would relieve appellant from liability for the negligence of the latter.The correctness of the judgment is questioned upon the grounds that the court erred in the charge given, and in refusing special charges asked by appellant, and other grounds not necessary to mention.

It is contended that the court erred in paragraph 1 of its general charge, in the following particulars: (1) In defining the degree of care the master should exercise for the safety of his servant as being such care as an ordinary man would use under like circumstances.There being no evidence as to the degree of care an ordinary man would use, the definition was without meaning.(2) It is a charge upon the weight of the evidence, in assuming that plaintiff, at the time of the accident, was possessed of and had used such presence of mind, forethought, and care as an ordinary business man in like circumstances (real and apparent) would use.(3) It makes the liability of defendant depend, not upon the negligence or want of ordinary care of its vice-principal, but upon the terror or fright of plaintiff from a danger real or apparent; and this, without reference to the inquiry whether the terror was justified by the surrounding facts and circumstances, and without reference to the material inquiry whether Leitnaker, in producing the cause of the terror, was guilty of a want of such care as should have been used.

Paragraph 1 of the general charge against which these complaints are directed is as follows: "(1) If the jury, from preponderance in the testimony, find that at and immediately before the time of the fall, as alleged, by the order of Leitnaker, the general superintendent and in charge of the train, the plaintiff, Beatty, was engaged at work standing upon the bridge-cap as alleged, — a place not really or apparently dangerous, — and that while...