Galveston, H. & H. R. Co. v. Anderson

• Decision Date: 15 April 1920
• Docket Number: (No. 7859.)
• Citation: 229 S.W. 998
• Parties: GALVESTON, H. & H. R. CO. v. ANDERSON.
• Court: Texas Court of Appeals

229 S.W. 998

GALVESTON, H. & H. R. CO. v. ANDERSON.

(No. 7859.)

Court of Civil Appeals of Texas. Galveston.

April 15, 1920.

Dissenting Opinion, April 19, 1920.

Rehearing Denied February 13, 1921.

Appeal from District Court, Galveston County; Robt. G. Street, Judge.

Suit by James Anderson, a minor, by W. J. Anderson, as next friend, against the Galveston, Houston & Henderson Railroad Company. Judgment for plaintiff, and defendant appeals. Reversed and rendered.

McMeans, Garrison & Pollard and John M. King, all of Houston, and John L. Darrouzet, of Galveston, for appellant.

Fuller & Brady, of Galveston, Geo. G. Clough, of Houston, and John T. Wheeler, of Galveston, for appellee.

LANE, J.

James Anderson, a minor, by W. J. Anderson, as next friend, brought this suit against the Galveston, Houston & Henderson Railroad Company to recover damages for personal injuries sustained by him on July 27, 1913, while in the employment of the defendant as a call boy. He alleged that during the time of his employment and at the time of his injuries he was the age of 15 years; that in the performance of his duties as call boy he was compelled and required to pass over, through, and upon numerous tracks, frogs, and switches, and right of way of the defendant through its yards, which tracks were used by defendant for the purpose of switching cars and operating trains at all hours of the day and night; that the office of defendant where plaintiff was required to report for duty, and from which he received his instructions to carry messages and other duties required of him, is situated within the yards of defendant, and the only access thereto is through, over, and along and upon the many and numerous tracks, frogs, and switches of the defendant used and operated as aforesaid. He further alleged:

"Plaintiff represents that it is the custom well known to defendant, its agents, servants, and employés, for its employés, in going from and coming to their employment, it is necessary to pass along and upon the tracks and right of way of the defendant in its said yards, and that said right is exercised by the employés of defendant with the full knowledge and consent and requirement of said defendant, and is necessary that such use be made by said employés for the reason that there was on the 27th day of July, 1913, no other means of ingress or egress to and from their several employments, including the employment of the plaintiff herein; that plaintiff's employment and duty required of him, in performing the service and carrying out instructions, to pass over, through, and along said tracks as aforesaid."

Plaintiff then alleged his injuries on the 27th day of July, 1913, their nature, etc. He then alleged as follows:

"Plaintiff represents and shows to the court that the injuries received by him were the immediate and proximate result of negligence of the defendant, its agents, servants, and employés, for this: (a) That he was but a child fourteen years of age, which was known to defendant, its agents, servants, and employés, in employing him in a dangerous occupation as that of a call boy, his employment requiring him to labor and perform services for the defendant in and about dangerous machinery, such as locomotive engines, cars, railroad tracks, switch targets, and other equipment of defendant; (b) that defendant was guilty of negligence in employing plaintiff to work in the capacity hereinbefore alleged for the reason that plaintiff was a minor under fifteen years of age, and that said employment required plaintiff, in the performance of his duties, to be about dangerous machinery of defendant, in violation of the Penal Code of the State of Texas, in article 1050, Act of 1911, said statute being in words and figures as follows:

"`Any person, or any agent, or any employé of any person, firm or corporation who shall hereafter employ any child under the age of fifteen years to labor in or about any manufacturing or other establishment using dangerous machinery, or about the machinery in any mill or factory, * * * shall be * * * guilty of a misdemeanor,' etc. P. C. art. 1050; Acts 1911, p. 75 [Vernon's Ann. Pen. Code 1916, art. 1050.]"

He then alleged many and numerous other acts of negligence on the part of defendant railroad company, all of which he alleged were the proximate cause of his injuries; but, as such other allegations were withdrawn by him during the trial, any further statement of them here is unnecessary.

The defendant answered by general denial, and special pleas of contributory negligence and assumed risk.

The case was tried before a jury, to whom the court submitted same upon the following charge:

"Gentlemen: (1) If you find from the evidence that the plaintiff was under fifteen years of age at the time of the accident, you will return a verdict for the plaintiff, and assess his damages at such an amount as would reasonably compensate the plaintiff for the injuries alleged, so far as the same may be shown by the evidence, based on his mental and physical suffering, the permanency or otherwise of his injuries. If you find from the evidence that the plaintiff was himself guilty of the want of ordinary care without which the injury would not have occurred, then you will diminish the damages proportionately. In estimating damages, you may allow an amount not exceeding the reasonable value, if paid now, of such future damages.

"(2) If you believe from the evidence that the plaintiff was fifteen years of age or over at the time of the accident complained of, you will return a verdict for the defendant.

"(3) The burden of proof to show that the plaintiff was under fifteen years of age is on the plaintiff."

"In this case you are instructed that the plaintiff has withdrawn all of the allegations against the defendant of negligence save and except that portion of the petition which alleges that the defendant company was negligent in employing the plaintiff in violation of the penal statute. You will, therefore, not take into consideration any other act of negligence that may have been alleged by the plaintiff."

The verdict of the jury was for the plaintiff for the sum of $3,000. Judgment was entered accordingly, from which defendant has appealed.

The plaintiff having abandoned all allegations of negligence on the part of defendant save and except the allegation that defendant committed an act of negligence in employing him as a call boy in violation of article 1050 of the Penal Code, prohibiting the employment of persons in certain establishments, etc., and under certain conditions, while under the age of fifteen years, appellant first contends that said article 1050 did not relate to, nor did it apply to, the employment of boys under the age of fifteen years by railroad companies in any capacity, and especially as to the employment of such boys as call boys or messengers, and therefore there was no violation of said article by defendant in so employing plaintiff, and hence the court erred in not instructing a verdict for defendant upon its written request.

The majority of this court has reached the conclusion that the foregoing contention should be sustained.

The acts forbidden by article 1050, Acts of 1911, are the employment of "any child under the age of fifteen years to labor in or about any manufacturing or other establishment using dangerous machinery, or about the machinery in any mill or factory, or in any distillery, brewery, or to labor in any capacity in the manufacture of goods for immoral purposes, or where their health may be impaired or morals debased, or to send any child to any disorderly house, bawdy house, or assignation house."

It was shown that appellee was employed as a call boy, his duties being to call crews and run errands for the appellant, to get and deliver waybills to the proper employés in and about the railway yards and in the city of Galveston; that in the performance of these duties he was required to go into the railway yards where cars and engines were being moved from place to place, to make calls and deliver messages and waybills, and that at the time of his injury he was on his way from the office of appellant to his home to get his supper, with instructions to hurry back.

As before stated, it is the contention of appellant that the statute in question had no application to the employment by railroad companies of boys under 15 years of age to perform services such as the plaintiff was employed to perform; that the inhibition was against employing such child to labor in or about any manufacturing or other establishments using dangerous machinery, or about the machinery in any mill or factory, and not to employment by railway companies of messenger boys. Appellant contends that had the Legislature intended to direct the inhibition against railroad companies it would have been an easy matter for it to have so declared, and that it would no doubt have so declared had it been intended so to do.

It will be observed that establishments and places where the employment of children are forbidden are designated as manufacturing establishments using dangerous machinery; other establishments using dangerous machinery; about machinery in any mill or factory. If the employment of a child by a railroad company is inhibited by this statute, it is embraced in the phrase "or other establishments using dangerous machinery." We are not disposed to include railroads in the term "other establishments using dangerous machinery" found in the statute being discussed. While a railroad does in certain places and manner use much dangerous machinery in performance of its business and purposes, it can hardly be referred to as an establishment where dangerous machinery is used. If the statute in question is applicable to railroad companies, such companies are forbidden to employ a child under 15 years of age in any capacity whatever solely because they, in some places and manner, use dangerous...