Culpepper v. International & G. N. Ry. Co.

• Decision Date: 26 April 1897
• Citation: 40 S.W. 386
• Parties: CULPEPPER v. INTERNATIONAL & G. N. RY. CO.
• Court: Texas Supreme Court

Page 386

40 S.W. 386

CULPEPPER v. INTERNATIONAL & G. N. RY. CO.

Supreme Court of Texas.

April 26, 1897.

Error to court of civil appeals of Fourth supreme judicial district.

Action by Alice Culpepper, for the benefit of herself and minor children, against the International & Great Northern Railroad Company, to recover for the death of plaintiff's husband. Judgment for plaintiff was reversed by the court of civil appeals (38 S. W. 818), and plaintiff brings error. Affirmed.

Marsh & McIlwaine, for plaintiff in error. John M. Duncan and T. N. Jones, for defendant in error.

GAINES, C. J.

This suit was brought by the plaintiff in error for the benefit of herself and her minor children against defendant in error to recover damages for injuries resulting in the death of J. J. Culpepper, her husband and the father of her children. She recovered a judgment in the trial court, but upon appeal that judgment was reversed, and the cause remanded by the court of civil appeals. The latter court held that the trial judge should have instructed a verdict for the defendant. It was alleged in the petition for the writ of error that the decision of the court of civil appeals practically settled the case, and, such appearing to be the fact, the writ was granted, and the cause is now before us for disposition.

When the accident occurred which resulted in the death of Culpepper, he was the engineer running a freight train of the defendant company, which was immediately followed by another train, known as the "second section." For the purpose of working on a hot box on the engine, he stopped it over a cattle guard in a deep cut, near a curve in the track, and, while so working under the engine, the train was struck by the rear section, and injuries thereby inflicted which resulted in his death. The ground upon which a recovery was sought was that the conductor of the front train was negligent in not putting out a brakeman to signal the rear section. The collision occurred on the 5th day of November, 1892, while the act of March 10, 1891, in relation to fellow servants of railroad companies, was in force. That act was repealed by that of May 4, 1893 (Laws 1893, p. 121), but the court of civil appeals correctly held, as we think, that the repeal did not affect the question of liability in this case. They, however, held also that the evidence indisputably showed that under the rule established by the former statute the conductor and engineer were fellow servants; and it was upon this ground that they determined that a verdict for the defendant should have been directed. In the latter ruling we think they were in error.

So much of the act of 1891 as applies to the question under consideration reads as follows:

"Section 1. That all persons engaged in the service of any railway corporations, 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 another employé in the performance of any duty of such employé, are vice-principals of such corporation, and are not fellow-servants with such employé.

"Sec. 2. That all persons who are engaged in the common service of such railway corporations and who, while so engaged are working together at the same time and place to a common purpose, of same grade, neither of such persons being entrusted by such corporations, with any superintendence or control over their fellow employés, are fellow-servants with each other; provided, that nothing herein contained shall be so construed as to make employés of such corporation, in the service of such corporation, fellow-servants with other employés of such corporation engaged in any other department or service of such corporation. Employés who do not come within the provisions of this section shall not be considered fellow-servants."

The testimony shows that under the rules of the defendant company the conductor had general superintendence of the movements of the train and command of all the employés engaged in its operation, but it also tended to show that when the safety of the train became involved the engineer was no longer subject to the absolute control of the conductor, but was empowered to act upon his own judgment. The written rule of the company as to the authority of these employés was read in evidence, and is as follows: "All trains will be run under the direction of conductors, except when their directions conflict with rules, or involve risks, in which case the engineer will be held equally responsible." The contention seems to be that whenever a risk became involved, and the engineer saw proper to stop his train in order to avoid it, for the reason that he was not then subject to the control of the conductor, they became fellow servants, and so remained as long as that state of affairs continued to exist. But, as we have previously intimated, we are of the opinion that this position cannot be maintained. Merely because, by reason of the engineer's superior technical knowledge and skill in operating the machinery, it was not deemed advisable to empower the conductor to direct the action of the engineer in certain contingencies, it does not follow that the...