Austin Rapid Transit Ry. Co. v. Groethe

• Decision Date: 06 February 1895
• Citation: 31 S.W. 197
• Parties: AUSTIN RAPID TRANSIT RY. CO. v. GROETHE.
• Court: Texas Court of Appeals

31 S.W. 197

AUSTIN RAPID TRANSIT RY. CO. v. GROETHE.

Court of Civil Appeals of Texas.

February 6, 1895.

Appeal from district court, Travis county; James H. Robertson, Judge.

Action by Charles Groethe against the Austin Rapid Transit Railway Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Defendant objected to the testimony of Max Schneider as to what would be a reasonably safe manner and what would be proper and reasonably safe appliances to use in raising a car, on the ground that it was not a proper matter to be proved by expert testimony. He also claimed that the "act of March 10, 1891,¹ entitled "Fellow Servants," was unconstitutional, because it was class legislation.

Fisher & Townes, for appellant. Wheless & Harris, for appellee.

Statement of the Case.

FISHER, C. J.

This is a suit brought by the appellee against appellant on December 20, 1892, in the Fifty-Third district at Austin, for personal injuries sustained by appellee in the car shops of appellant while in its employ, working under the body of one of appellant's street cars, attempting to raise it, so as to put other trucks under it. The plaintiff's charges of negligence are: (1) Insufficient and defective appliances, because only one jack screw was furnished for raising the car; (2) improper and reckless orders as to the manner of doing the work by one Eggling, the alleged vice principal of the appellant; and (3) insufficient supports for the car as it was being raised. The appellant answered by general and special demurrers and general denial, special denials of the alleged wrongs charged against it in the petition, and a plea of contributory negligence on the part of appellee. The case was tried April 21, 1893, and resulted in a verdict and judgment for appellee for $2,000.

Conclusions of Fact.

(1) There is evidence in the record that shows that the appellee sustained injuries of a nature and character—by reason of the acts complained of—that justify the amount of verdict and judgment against appellant. (2) We find that appellee was injured at the time and place and in the manner and form substantially as alleged in his petition, and that at said time he was a laborer in the employ of appellant, a railroad corporation, operating a street railway in the city of Austin, Tex., and that he was under the immediate control of one Eggling, a foreman or superintendent of appellant's track, and that he was subject to the orders and control of Eggling in doing labor for appellant; that Eggling, in his line of business for which he was engaged, could employ and discharge hands. We also find that at the time the appellee was injured Eggling was superintending and directing the work and labor being done on the car by appellee and others, and that Eggling instructed the appellee in the performance of such work, and at that time appellee was subject to his orders and control. And we also find that the appliances used by Eggling at the time in raising the car were not reasonably safe and suitable for that purpose, and that the...