Burns v. Merchants' & Planters' Oil Co.

• Decision Date: 09 May 1901
• Citation: 63 S.W. 1061
• Parties: BURNS v. MERCHANTS' & PLANTERS' OIL CO. et al.<SMALL><SUP>1</SUP></SMALL>
• Court: Texas Court of Appeals

63 S.W. 1061

BURNS v. MERCHANTS' & PLANTERS' OIL CO. et al.¹

Court of Civil Appeals of Texas.

May 9, 1901.

Appeal from district court, Harris county; William H. Willson, Judge.

Action by Maggie Burns against the Merchants' & Planters' Oil Company and others. From a judgment for plaintiff for only a portion of her demand, she appeals. Reversed.

J. B. Brockman, O. T. Holt, and L. B. Moody, for appellant. Hutcheson, Campbell & Hutcheson, Baker, Botts, Baker & Lovett, and A. L. Jackson, for appellees.

GARRETT, C. J.

This action was brought by the appellant, Maggie Burns, to recover damages for the death of her husband, Ben Burns, resulting from injuries received by him while in the employment of the appellee Merchants' & Planters' Oil Company through the negligence of said company, and the Texas & New Orleans Railroad Company, both of whom are sued. The father and mother of the deceased, Amos and Fannie Burns, were made parties defendant. Amos died pending the suit, and the action was dismissed as to him. Deceased was killed by the running of a switch engine, by the employés of the railroad company, into the premises and yard of the oil company, against a cable suspended over the track, and which the deceased and other servants of the oil company were repairing, and throwing down a platform upon which they were at work; and the petition alleged negligence on the part of the oil company in failing to station a watchman, and warn the deceased of the approach of the engine, and on the part of the railroad company in failing to give notice of its intention to run the engine into the yard, and negligently running against the cable. There was a trial by jury, which resulted in a judgment in favor of the plaintiff against the Merchants' & Planters' Oil Company for the sum of $500, and against the plaintiff in favor of the railroad company. The defendant Fannie Burns recovered nothing. This appeal is by the plaintiff, who assigns as error the inadequacy of the amount recovered by her against the oil company, and errors of the court against her as to the railroad company upon the submission of the case to the jury in giving and refusing instructions. By cross assignment of error the oil company denies any liability for the death of the plaintiff's husband, because it was the result of the negligence of a fellow servant of the deceased, and because the oil company is a corporation not responsible for the negligence of its servants or agents.

Ben Burns and the plaintiff were married April 27, 1898. He was employed by the oil company as a "roustabout," and was killed on October 22, 1898. At the time of the accident the deceased was engaged, with a gang of men under the direction of a foreman, in repairing a cable which extended from one seed house to another, situated on opposite sides of some railroad switch tracks running into the premises of the oil company. The premises were inclosed by a fence, and where the tracks entered the inclosure there was a gate. The engines of the railroad company frequently came into the inclosure with cars to be loaded and unloaded, and ran over the tracks alongside of the seed houses. It was customary for blasts of the whistle to be given when the engines were about to enter the premises, but this was done for the purpose of having some one to open the gates, which were usually kept closed, and to notify the weighmaster of the oil company so as to ascertain from him the work to be done for the mill. All of the employés of the oil company knew that there was a great deal of switching done there. At the opposite end of each of the seed houses from the gate, and out of view of the persons operating an engine entering the gate, there was a platform, about 17 feet above the ground, and near them were pulleys attached to machinery in the seed houses, upon which a wire cable ran from one seed house to the other over the railroad tracks high enough for the engine to pass under it easily. The cable was an endless chain about 217 feet long and weighed approximately 400 pounds. On the morning of the accident in which Burns was killed, a strand of the wire cable referred to had become loose, or frayed, and Sweeney, the superintendent of the oil company, instructed one Coultrup to repair the cable, assigning to him six men to assist him in making such repairs. Coultrup was a carpenter and a millwright. In order to repair the cable, it became necessary to get up on the platform at the end of each of the seed houses, and take the cable from off the pulleys, in order to slacken it. Coultrup, and those working with him, had taken the cable off the flange of one of these pulleys, letting it rest on the axle or shaft, and were upon the platform at the end of the other seed house, removing the cable from the other pulley, when an engine belonging to and operated by the railroad company entered the oil company's yards to do some switching, and ran down one of the tracks lying between the oil company's seed houses, when its smokestack came in contact with the slackened, suspended cable thus lowered with such force as to pull down the platform at the end of the seed house upon which Coultrup, Ben Burns, and others were working, throwing Ben Burns to the ground, killing him. None of the switch crew had noticed or paid any particular attention to the position of the cable prior to the injury, and did not know that there was anything unusual in its position. The cable had never been left in such position before, and no trouble had ever been had in running engines under it. None of the crew had knowledge of any fact that would indicate that the deceased or other employés of the oil company were about to repair the cable, or to change its position. The crew had been in the yard before on the same day with the engine, and had gone out. The whistle was not blown on their return because they found the gate open, and had no occasion to get information from the weighmaster. While they were out, the employés of the oil company went upon the platform, and lowered the cable, in order to repair it. There does not appear to have been any negligence on the part of the servants of the railroad company in the operation of the engine and running it against the cable. It was shown by the evidence that the gang engaged in repairing the cable was detailed for that special purpose, and was in charge of the foreman, Coultrup; but he had nothing to do with hiring or...