Crow v. McAdoo

• Decision Date: 04 February 1920
• Docket Number: (No. 6142.)
• Citation: 219 S.W. 241
• Parties: CROW v. McADOO, Director General.
• Court: Texas Court of Appeals

219 S.W. 241

CROW v. McADOO, Director General.

(No. 6142.)

Court of Civil Appeals of Texas. Austin.

February 4, 1920.

Appeal from District Court, Brown County; J. O. Woodward, Judge.

Action by Henry Crow, a minor, by his father, F. F. Crow, as next friend, against William G. McAdoo, Director General of Railways. From a judgment for defendant, plaintiff appeals. Affirmed.

I. J. Rice, of Brownwood, for appellant.

Harrison & Cavin, of Eastland, Terry, Cavin & Mills, of Galveston, and Leé, Lomax & Smith, of Ft. Worth, for appellee.

Findings of Fact.

BRADY, J.

Henry Crow, a minor, by his father, F. F. Crow, as next friend, brought this suit against William G. McAdoo, in his capacity of Director General of Railways, and particularly as director, manager, and operator of the Gulf, Colorado & Santa Fé Railway Company, for damages for personal injuries.

It was alleged that Henry Crow, at the date of his injuries, was only 17 years of age, and was employed by the agent and vice principal of appellee, one H. S. Stone, without the consent of his parents, with whom he was living. The work at which he was injured was the disinfecting of stock cars on the railway tracks at Brownwood, Tex. It was alleged that he was not warned of the danger incident to the employment, and was ignorant of the same, and that the chemical solution used in the work of disinfecting was furnished by the railway company; that it was poisonous, and calculated to injure persons handling it in the manner employed, and especially in so applying it as to the inexperienced, and children of immature judgment, without knowledge of its dangerous character. The injuries were averred to have resulted from the splashing of some of the solution in the eye of Henry Crow, while engaged in such work.

In addition to general and special exceptions and denials, the appellee specially defended upon the ground that Stone was not its agent, but was an independent contractor, for whose acts and omissions appellee was not liable, and that the injuries resulted from unavoidable accident.

At the close of the plaintiff's evidence, the court gave a peremptory instruction to the jury to find for the defendant, because there was no evidence showing that Stone was an employé of defendant, and further because the injury was a mere accident on the part of plaintiff. Upon a verdict for defendant, judgment was rendered accordingly.

The material facts are that Henry Crow, 17 years old, was employed by H. S. Stone to assist in disinfecting certain cars which Stone had contracted with the railway company to disinfect. Stone had authority to employ and discharge whom he pleased, without any control or supervision by the railway company, and without the latter having reserved any right to supervise or direct the duties, details, or manner in which the work should be done. Stone had previously, through the local railway agents at Brownwood, been engaged to transfer loads from cars, to reload bad order cars, and to disinfect and to bed stock cars, and to do similar work from time to time, as required by the railway company. In the work of disinfecting cars, a medicated creosote, mixed with a solution of water and lime, was used by Stone. The materials were furnished by the railway company, together with a standard formula for mixing the same, but the preparation and mixing of the solution was done by Stone. Stone was paid by the job, depending upon the amount of work he did; that is, so much per car. He was not a regular employé of the railway company, and when he finished a given piece of work his connection with the corporation ceased until new work was assigned to him. In accordance with the agreement and understanding, he also performed work for other persons while transferring, unloading, and disinfecting cars for the railway company. Stone was carried on the extra labor roll of the Santa Fé at Brownwood, upon which were also carried persons who performed the character of work done by Stone, and such persons were paid for the work done out of the cash drawer by the agent, who required them to sign the extra labor roll, but this was a mere matter of bookkeeping.

According to the testimony of Henry Crow himself, the injury occurred by his foot slipping in the car, and splashing some of the solution in his eye. His statement was:

"When I slipped in the car I went down, and when I went down the can hit the floor, and splashed a big lot in my eye, and I fell forward to my hands and knees."

Opinion.

The ruling of the trial court presents two questions, an affirmative answer to either of which requires the affirmance of the judgment. These questions will be considered in their order, and they are:

First. Was H. S. Stone an independent contractor?

Second. Were the injuries proximately caused by an unavoidable accident?

The rules for determining whether the relation is that of an independent contractor or of master and servant were early announced by our Supreme Court in the case of Cunningham v. Railway Co., 51 Tex. 503, 32 Am. Rep. 632, in which the court said:

"There is marked distinction between the liability of the master for the acts of an ordinary servant in the usual scope of his duties as such and that of an employer for the acts of an independent contractor. This distinction rests upon the reasonable principle that, in a proper case, the liability of the master should be commensurate with the extent only of his right to control. * * *

"In the first relation, that of master and servant, the master has the right to direct the conduct of the servant and the mode and manner of doing the work, and hence his corresponding liability for an improper execution of the same. Wood on Master and Servant, § 281.

"`He is deemed the master who has the...