Easton v. Houston & T.C. Ry. Co.

• Decision Date: 13 June 1889
• Citation: 39 F. 65
• Parties: EASTON et al. v. HOUSTON & T.C. RY. CO. et al., (Lundien, Intervenor.)
• Court: U.S. District Court — Eastern District of Texas

39 F. 65

EASTON et al. v. HOUSTON & T.C. RY. CO. et al., (Lundien, Intervenor.)

United States Circuit Court, E.D. Texas.

June 13, 1889

John Dowell, for intervenor.

Baker &amp Holt, for receivers.

Before LAMAR, Justice, and PARDEE, J.

PER CURIAM.

In this case we have carefully examined and considered the evidence and have also duly considered the arguments made in support of the exceptions to the master's report. Our conclusion is that none of the exceptions are well taken. The nature of the intervenor's employment, as one of the bridge gang to make repairs of railroad bridges, and the character of the work assigned this gang at the time of the accident, to-wit the pulling down of an elevated water-tank, was a sufficient notice to the intervenor that the kind of quality of work which he had undertaken to do as an employe of the receiver was of a hazardous, if not positively dangerous, character. The intervenor seems to have met his injury by an accident which could not have been foreseen by the receivers, and, if it could have been foreseen at all, it was only by himself and the other members of his gang, fellow-servants of his. The evidence does not show that the pile of old scrap-iron lying near the foundation of the tank and the railroad track cut any figure in the matter.

Conceding for this case, and this case only, that the relation between the receivers and the surgeons who conduct and carry on the railway hospital was that of master and servant, the weight of evidence is very strongly against the claim of intervenor's of malpractice in the surgical treatment he received. The nature of the fracture was such that it seems to have been impossible to have otherwise properly treated it than by amputation. Amputation, finally resorted to, was long postponed by the surgeons, at the earnest entreaties of intervenor himself.

We notice in the evidence that the intervenor was offered half pay, at the rate of his regular wages when employed, on condition that he would waive all claims against the receiver for damages. If, under the rules of the company, a person injured as intervenor was, was entitled to receive wages for the time lost during his treatment and residence in the hospital, we think it should have been given him without exacting a release of any right he may have had to apply to the court. The following decree will be entered in the case: DECREE.

This cause came on to be further...