Dallas v. G.

• Decision Date: 27 February 1884
• Docket Number: Case No. 1674.
• Court: Texas Supreme Court
• Parties: JAMES W. DALLAS v. THE G., COL. & S. F. R'Y CO.

61 Tex. 196

JAMES W. DALLAS

v.THE G., COL. & S. F. R'Y CO.

Case No. 1674.

Supreme Court of Texas.

Feb. 27, 1884.

APPEAL from Washington. Tried below before the Hon. I. B. McFarland.

Suit instituted by appellant. The petition alleged in substance that plaintiff had been employed by defendant to guard the property of defendant, and especially to find out who had burned and destroyed a lot of ties, and to prevent the burning and destruction of other ties and property of defendant along its railroad and right of way from the Yegua creek to the town of Caldwell in Burleson county. That in the discharge of said duties he was required to ride on horseback along the line of road from the end of the track, then about ten miles north of Brenham, to the town of Caldwell. For this service he was paid $100 per month, and the board of himself and horse; that on the occasion of the accident he had been ordered to perform other and different service from that above mentioned, which service required him to ride on defendant's construction train; and while so riding he was injured by the cars being thrown from the track. Alleged negligence in the management of the train and sought to recover damages for his injuries.

Defendant filed general and special demurrers, general denial, and pleaded specially that plaintiff was a servant and employee and could not recover for negligence of a fellow-servant; that he went on the construction train voluntarily, without being required to do so; that the train was well manned with competent, skilful and sober employees; that there was no negligence; that plaintiff had been accustomed to ride on the construction train voluntarily and against his orders, well knowing the danger, etc.

Verdict and judgment for defendant.

The plaintiff went on the train to Brenham, and having procured the execution and acknowledgment of a deed for appellee, in his employment, he on the morning of August 25, 1880, got on the defendant's train of cars at Brenham to return to Caldwell to have the deed recorded. The train consisted of a locomotive and nine flat-cars loaded with railroad iron, spikes and other material, and was in charge of the engineer, Sol Bills, and there were also two brakemen on the train. The plaintiff with four or five other persons got on the rear car and remained there until thrown off. When the train got about ten miles north of Brenham a cow was run over, and several cars, including that on which the plaintiff was riding, were thrown from the track and the plaintiff was very seriously injured. His right thigh was broken and the bone split, and he was also badly bruised and hurt, and had never recovered from said injuries.

The court charged the jury, among other things, as follows:

… 3. The railroad company, as a general rule, would not be responsible for injuries received by one of its servants while in the regular discharge of his duties by an accident resulting from a danger common to the employment, nor would it be held answerable for injuries resulting from the negligence of another of his co-servants, unless it shows that such other servant was incompetent and unworthy of trust, and that the company knew it.

4. The jury will therefore determine from the evidence, first, whether the plaintiff Dallas, at the time he received the injury, was acting as a servant of the company.

5. Upon this subject you are charged that if you believe, from the evidence, that the plaintiff Dallas was in the employ of the company watching its ties along said road, and that, while so employed, he, in obedience to orders to proceed to a point a few miles from Brenham, and procure a deed in favor of the company from another party, voluntarily got on defendant's train and went to Brenham, and, after having procured the deed as directed, he voluntarily started on defendant's train to return to Caldwell, where the deed was to be recorded, he was acting in the employ of the company, and was then acting as a servant of the company, and cannot recover in this action.

6. If, on the other hand, you believe from the evidence that plaintiff was not acting as a co-servant of other employees and servants of the company at the time he received the injury, and if you further believe from the evidence that the accident was caused by the negligent conduct of the locomotive engineer, then you will find for plaintiff and allow him such damages as you may think him entitled to under the proof, taking into consideration the age and strength of the plaintiff, and his ability to earn a living at the time he received the injury, as compared to his present condition, and the amount of injuries actually received, first giving the defendant credit for such amounts as have been paid to the plaintiff since the accident, in the way of wages, doctor's bills, nurse hire, etc.

The following charges were given at the instance of the defendant:

1. Ordinarily an employee cannot recover damages of his employer for injury received in his employment, through the negligence or carelessness of another employee. And the fact that the person injured may not be engaged in the same labor or line of employment with him whose negligence caused the injury does not change the rule of law, provided they in any manner co-operate in the same general business and are subject to the same general direction and control. The real test of co-service is subjection to the same general control, and co-operation to secure a common result, if there is a natural or necessary connection between the different classes of service, such as necessarily brings the servants into contact with each other in the prosecution of their work, however dissimilar their occupation may be. Therefore, I charge you that if you believe from the evidence that the plaintiff was an employee of the defendant, and engaged to perform services connected with or in aid of the construction and extension of the defendant's railway north of Brenham, and that in the performance of his duties he was accustomed to ride without charge and at his own will upon the construction train of defendant along said line, and that he was so in the employ of the defendant at the time he was injured, you will find a verdict for the defendant, notwithstanding you may believe that the plaintiff's injuries were caused by the negligence of the locomotive engineer.

Breedlove & Ewing, for appellant, cited: H. & T. C. R. R. v. McNamara, 1 Tex. Law Rev., 245; T. & P. R. R. v. Kirk, 2 Tex. Law Rev., 214; Ph., etc., R. R. v. Derby, 14 How., 484;Kielley v. Belcher Mining Co., 3 Sawy., 437; Shear. & Redf. on Negligence, §§ 108-110; Wood on Master and Servant, § 435, pp. 835-851, and authorities cited; Wharton on Negligence, § 230; Baird v. Pettit, 70 Pa. St., 477; Gillenwater v. Madison, etc., R. R., 5 Ind., 339; O'Donnell v. Allegheny, etc., R. R., 59 Pa. St., 239; Ch. & N. W. R. R. v. Morander, 93 Ill., 302; C., B. & Q. R. R. v. Gregory, 58 Ill., 272;T. W. & W. R. R. v. O'Connor, 77 Ill., 391;Booth v. B. & A. R. R., 73 N. Y. 38;Braun v. Chicago, etc., R. R., 53 Iowa, 595; C., R. & I. R. R. v. Henry, 7 Bradw., 322;Ill. Cen. R. R. v. Welch, 52 Ill., 183;Ford v. Fitchburg R. R., 110 Mass., 240;Lalor v. C., B. & Q. R. R., 52 Ill., 401;Ryan v. Chicago, etc., R. R., 60 Ill., 171.

Ballinger, Mott & Terry, for appellees, cited: Robinson v. R'y Co., 46 Tex., 540;R'y Co. v. Lempe, 1 Tex. Law Rev., 107 (59 Tex., 19);Watson v. R'y Co., 58 Tex., 434; R'y Co. v. Toppins, 11 Amer. & Eng. R. R. Cases, 222; Murphy v. R'y Co., 8 Amer. & Eng. R. R. Cases, 510; Harvey v. R'y Co., 8 Amer. & Eng. R. R. Cases, 515; Gormery v. R'y Co., 5 Amer. & Eng. R. R. Cases, 581; Henry v. R'y Co., 2 Amer. & Eng. R. R. Cases, 60; Thompson on Negligence, 1026, 1031; Story on Agency, 563, and note; Wood on Master and Servant, 835, 852; Wharton on Negligence, secs. 229, 231 et seq.; S. & R. on Negligence, secs. 108, 109; Carter v. Jewett, 5 Amer. & Eng. R. R. Cases, 520; Holden v. R'y Co., 2 Amer. & Eng. R. R. Cases, 94; Farwell v. R'y Co., 4 Met., 49; Hayes v. R'y Co., 3 Cush., 270;McDermott v. R'y Co., 30 Mo., 115; Wholan v. R'y Co.. 8 Ohio, 249.

WEST, ASSOCIATE JUSTICE.

Without setting forth at length the testimony, or even such portions of it as we regard as the most significant, we may content ourselves with saying that, under the facts detailed in evidence before them, the jury were justified in holding that the appellant was a co-employee with the engineer of the wrecked train at the time the injury was received.

The road was then in course of construction at the point where the injury occurred. They both had as a common superior Mr. B. M. Temple, chief engineer, who had charge of the construction of this part of the road. The evidence clearly shows that the appellant, under his contract of service, felt himself bound, or at least consented, to perform such acts as the chief of construction or the chief's immediate subordinates desired him to do. All such acts, however, grew in a measure out of his employment, and were more or less connected with the business of the construction of the road. He had been sent once to hunt mules that belonged to the company, and, we may presume, were used in the work of construction. His chief once sent him to guard a lady passenger, put off at night at the end of the unfinished track. Other like acts are stated.

The appellant was in fact a servant of the company for hire, engaged in an employment connected with the construction of the road. His...