Campbell v. Cook

• Citation: 26 S.W. 486
• Parties: CAMPBELL et al. v. COOK
• Decision Date: 26 April 1894
• Court: Supreme Court of Texas

26 S.W. 486

CAMPBELL et al. v. COOK

Supreme Court of Texas.

April 26, 1894.

Error from court of civil appeals of first supreme judicial district.

Action by J. M. Cook against T. M. Campbell, as receiver of the International & Great Northern Railroad Company, and against such company, for personal injuries. There was a judgment of the court of civil appeals (24 S. W. 977) affirming a judgment for plaintiff, and defendants bring error. Reversed.

J. M. Duncan and G. H. Gould, for plaintiffs in error. H. H. Holliday and S. A. McMeans, for defendant in error.

BROWN, J.

J. M. Cook sued T. M. Campbell, then receiver of the International & Great Northern Railroad Company, alleging that on the 10th day of November, 1891, plaintiff was in the employ of the said receiver as a brakeman; that it was a part of his duty to uncouple and couple cars, and to remove coupling pins when necessary for that purpose; that I. McNeill was also in the employ of the receiver as conductor of the train on which plaintiff was working, and that said McNeill had the control and direction of the plaintiff and the said crew, whose duty it was to obey his orders. Petitioner proceeds to set out the management of the cars on that occasion which brought about the injury complained of, and that when injured he was in discharge of the duty assigned to him by the conductor, and in obedience to his orders. Facts are alleged showing that the conductor was negligent, and that the injury was the result of his negligence. The injuries received are alleged as follows: "Breaking and crushing the bones of his hip and thigh; tearing, cutting, and lacerating his flesh; bruising, wounding, and injuring him in his back, bowels, hips, legs, and in other parts and members of his body." Plaintiff alleged that from the said injuries he had suffered, and would continue to suffer, great mental anguish and physical pain; that the injuries are permanent, destroyed the use of one leg, and that his capacity to labor and earn money is almost entirely destroyed. The petition also alleged that the conductor in charge of the train was unskilled, unfit, and incompetent to discharge the duties of conductor, which was known to the defendant, or could have been known by due care, and was not known to the plaintiff. The amended petition upon which the parties went to trial alleged that the receiver had been discharged, and the property returned to the corporation, the International & Great Northern Railroad Company, which is made party defendant. The receiver filed a general demurrer, general denial, and special answer, setting up that plaintiff's injuries were caused by the negligence of a fellow servant. The railroad company adopted the answer of the receiver, repeating the special answer. The court overruled the demurrer, and upon trial before a jury judgment was given for plaintiff, from which appeal was taken, and it was affirmed by the court of civil appeals.

The court did not err in overruling the demurrer, because the petition alleged that the conductor was incompetent to discharge the duties to which he was assigned, and that the defendant knew the fact, or might have known it by due care and diligence, and that plaintiff did not know of such incompetency. This was good on general demurrer, and, although the other allegations might show the conductor to be a fellow servant, defendants would be liable if guilty of negligence in employing an incompetent person for such a place whose negligence caused the injury.

At the trial the court permitted the plaintiff, over the defendants' objections, to testify that "his capacity to have sexual intercourse with his wife was greatly impaired;" to which the defendants objected, "because there was no allegation in the petition which would authorize the admission of such evidence, and because the petition does not claim such damages." It is well settled in this state that a general allegation of damages will let in evidence of such damages as naturally and necessarily result from the wrongs charged, but to admit proof of damages which do not necessarily result from the injury alleged the petition must set up the particular effects claimed to have followed the injury. Railway Co. v. Curry, 64 Tex. 87. The object of pleading is to notify the opposite party of what it is expected to prove on the trial. In this case there was no injury alleged to have been inflicted upon any organ or member of the body from which such "impairment" would naturally, not to say necessarily, follow. The court erred in admitting the evidence.

The judge of the district court charged the jury, in substance, that if the conductor of the train on which plaintiff was employed as brakeman was by the defendants intrusted with the direction and control of plaintiff in the discharge of his duties as brakeman, and if plaintiff's injuries were caused by the negligence of the conductor while engaged as such, plaintiff could recover from the defendants for such injuries. The defendants asked the court to charge the jury to the contrary of this proposition, which was refused. The giving of the charges by the court and refusing those asked by defendants are assigned as error. On the 10th day of March, 1891, the legislature passed the following act: "An act to define who are fellow servants and who are not fellow servants. Section 1. Be it enacted by the legislature of the state of Texas: 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 corporations, and are not fellow-servants, with such employee. Sec. 2. That all persons who are engaged in the common service of such railway corporation, and who, while so engaged are working together at the same time and place to a common purpose, of same grade, neither of said persons being entrusted by such...