Campbell v. Cook

• Decision Date: 11 January 1894
• Citation: 24 S.W. 977
• Parties: CAMPBELL et al. v. COOK.
• Court: Texas Court of Appeals

24 S.W. 977

CAMPBELL et al. v. COOK.

Court of Civil Appeals of Texas.

January 11, 1894.

Appeal from district court, Anderson county; W. Q. Reeves, Judge.

Action by J. M. Cook against T. M. Campbell, as receiver of the International & Great Northern Railway Company, and against such company, for personal injuries. From a judgment for plaintiff, and an order denying a new trial, defendants appeal. Affirmed.

G. H. Gould, for appellants. S. A. McMeons and W. H. Halliday, for appellee.

PLEASANTS, J.

On the night of the 10th of November, A. D. 1891, the appellee, while in the employment of the appellant Campbell, as brakeman upon a freight train of the International & Great Northern Railway, was injured by being caught between two cars in the yard of said railroad, in the town of Rockdale; and for such injury he brought suit for the recovery of damages, making both the railroad corporation and the receiver of its property parties defendant. The petition avers that, at the time of his injury, plaintiff was engaged in trying to remove from the drawhead of a standing car a coupling pin; that the pin was tight, and he was instructed by the conductor of the train to remove it; that while hammering upon the pin, with his back to the engine, with several cars attached, and which had been gradually detached from the car in which the said pin was fastened, the train came upon him with great force, and pressed him against the said car, and severely wounded him in his back, bowels, hips, and legs, and other parts and members of his body; that, before plaintiff commenced to extricate said pin from said car, the engineer and brakeman in charge of said engine and cars had, by order of the conductor, moved the same some distance from the car at which plaintiff was working, for the purpose of passing through a switch upon another track than that upon which plaintiff was, and that while plaintiff was endeavoring to remove said pin, and with his back towards said engine and cars detached as aforesaid, the conductor, without the knowledge of plaintiff, signaled the engineer, before he had gotten into the switch, to return with the detached train to the car at which plaintiff was working; that plaintiff had no knowledge whatever of the approach of said train until he was struck and crushed by it; that, the whole time he was at work with said coupling pin, the conductor was standing within a few feet of him, and that he was working at said pin under the orders and immediate oversight of said conductor; that he knew the detached engine and cars had been ordered to be taken upon another track, and that he was relying upon the conductor to protect him, and to warn him of any approaching train; and that by the negligence of the conductor, in failing to warn him of the returning train, plaintiff was caught and bound and wounded as aforesaid. And the petition further avers that himself and all the other operatives of said train were subject to the orders and control of the said conductor, and charges that the conductor was guilty of negligence in not warning plaintiff of the approach of the returning train, and that said negligence was the proximate cause of plaintiff's injuries, inflicted as aforesaid; that, before he was so injured, plaintiff was strong, healthy, and robust, and was earning $70 per month, and that by said injuries his capacity to earn money is almost entirely destroyed; that from them he has lost a leg, and for 12 months after his injuries he was unable to perform any labor, and that his time so lost was worth $100 per month; that he has suffered great bodily pain and mental anguish, and will continue so to suffer during the remainder of his life; that he has been compelled to pay out large sums of money for medicines and for medical services; and that, by reason of all of which sufferings and losses, he has been damaged in the sum of $20,000. Defendants answered by general and special exceptions, and aver that plaintiff's injuries resulted from his own negligence, and that of his fellow servants. The trial of the cause resulted in a verdict for the plaintiff for the sum of $5,000, and for that sum judgment was rendered for him; and, upon refusal of the court to grant them a new trial, defendants appealed to this court.

From this statement of his case, it will be seen that the plaintiff bases his right to recover upon the alleged negligence of the conductor of the train, and, if he can recover damages of the appellants for negligence of the conductor, it is by virtue of the act of the legislature approved March 10, 1891, and known as the "Fellow Servants' Act." It is insisted by appellants that this act does not apply to this case, inasmuch as the plaintiff was at the time of his injury the employe of the receiver of the International &amp Great Northern Railroad, and not the employe of a railroad corporation. The title of the act is, "An act to define who are fellow-servants and who are not fellow-servants," and its first section declares "that all persons engaged in the service of any railway corporation, foreign or domestic, doing business in this state, who are entrusted by such corporation with the authority of superintendence, control or command of other persons in the employ or service of such corporation, or with the authority to direct any other employee in the performance of any duty of such employee, are vice principals of such corporation, and are not fellow-servants with such employee." If this statute is to be construed according to the letter of its terms, the contention of appellants is correct. But must it be so interpreted? The real intention of the lawgiver, when ascertained, will always prevail over the literal sense of the terms of the statute. If the expression in a statute be special or particular, but the reason is general, the expression should be deemed general. The purpose and intent of the law are to be gathered from...