Galveston, H. & S. A. Ry. Co. v. Sherwood

• Decision Date: 19 March 1902
• Parties: GALVESTON, H. & S. A. RY. CO. v. SHERWOOD.
• Court: Texas Court of Appeals

67 S.W. 776

GALVESTON, H. & S. A. RY. CO. v. SHERWOOD.

Court of Civil Appeals of Texas.

March 19, 1902.

Appeal from district court, Medina county; I. L. Martin, Judge.

Action by H. Sherwood against the Galveston, Harrisburg & San Antonio Railway Company for injuries received while in defendant's employ. From a judgment for plaintiff, the defendant appeals. Affirmed.

Baker, Botts, Baker & Lovett and Ellis, Garner & Love, for appellant. Ed De Montel, S. B. Easley, Perry J. Lewis, and H. C. Carter, for appellee.

NEILL, J.

This is a suit brought by the appellee against appellant to recover $35,000, damages for personal injuries alleged to have been inflicted by the negligence of appellant. The railroad company answered by general and special exceptions, a plea of not guilty, and pleas of contributory negligence and assumed risk, and negligence of a fellow servant. The trial of the case resulted in a judgment in favor of appellee for $14,000, from which this appeal is prosecuted.

Conclusions of Fact.

On the 5th day of December, appellee was in the employ of appellant in its shops at San Antonio, and while so employed was under the direction and control of Henry Donnell, the company's vice principal. Donnell ordered him and Charles Richter, a fellow servant, to take up and carry a piece of timber, 2 by 12, 20 feet long, and weighing 160 pounds, from the yard opposite the boiler shop to an engine in the roundhouse. In obedience to the foreman's order they attempted to lift and carry it, and in their effort to do so, while appellee had one end on his shoulder, Richter, in trying to lift the other to his shoulder, let the timber fall because he was not strong enough to sustain its weight, whereby the appellee was seriously and permanently injured. Richter was physically incapable of lifting and carrying his end of the timber, which fact was known to appellant, or by the exercise of ordinary care could have been. Such physical inability of Richter was unknown to appellee, and was not apparent to him, nor was it as obvious to him as it was to Donnell, nor by the exercise of ordinary care and the use of his senses and the knowledge he had of Richter could appellee have known of Richter's physical incapacity and incompetency to do the work ordered by Donnell. It was negligence in appellant, through its vice principal, to order appellee and Richter to do work which the latter was physically unable to perform, and thereby subject the appellee to an extra hazard not contemplated by his contract of employment. Such negligence was the proximate cause of his injury. The appellee was not guilty of contributory negligence, and, being ignorant of Richter's incompetency, did not assume the risk of the danger incident thereto. By reason of such negligence the appellee sustained serious and permanent injuries, to his damage in the sum of $14,000.

Conclusions of Law.

1. The appellant's first assignment of error is, "The court erred in overruling defendant's demurrers to plaintiff's petition because said petition failed to set out a cause of action against defendant." A general demurrer and four special exceptions were presented and urged against the petition, and all questions raised by them are presented for consideration under this assignment. The petition is good as against the general demurrer. The assignment of error, in so far as it attacks the ruling on the special exceptions, is too general, and cannot be considered. Flewellen v. Ft. Bend Co. (Tex. Civ. App.) 42 S. W. 775; Traylor v. State (Tex. Civ. App.) 46 S. W. 81; Smith v. Russell (Tex. Civ. App.) 56 S. W. 687.

2. The second and third assignments of error raise the question of the power of the trial court to appoint surgical experts and order an examination by them of a plaintiff, who is seeking to recover for physical injuries, and compel him against his consent to submit to such an examination for the purpose of using the testimony of the surgeons as to facts ascertained and opinions formed by them from the examination as to the nature and extent of the plaintiff's injuries. The trial court, upon application of appellant to appoint the experts and order the examination, held that it had no such power. Upon the question the authorities are in hopeless conflict, and we will not even undertake to determine where the weight lies, so nearly do they seem to be balanced on either side. We will only cite a few of the cases outside of this state, and refrain from comment, for we can add nothing to what has been said on one side or the other. These cases sustain the ruling of the trial judge: Railroad Co. v. Botsford, 141 U. S. 250, 11 Sup. Ct. 1000, 35 L. Ed. 734; Railroad Co. v. Griffin, 25 C. C. A. 417, 80 Fed. 278; McQuigan v. Railroad Co. (N. Y.) 29 N. E. 235, 14 L. R. A. 466, 26 Am. St. Rep. 507; Pennsylvania Co. v. Newmeyer (Ind.) 28 N. E. 860; Parker v. Enslow, 102 Ill. 272, 40 Am. Rep. 588; Mills v. Railroad Co. (Del. Super.) 40 Atl. 1114. These are opposed to it: Railroad Co. v. Hill (Ala.) 8 South. 90, 9 L. R. A. 442, 24 Am. St. Rep. 764; Shepard v. Railway Co., 85 Mo. 629, 55 Am. Rep. 390; Sidekum v. Railway Co., 93 Mo. 400, 4 S. W. 701, 3 Am. St. Rep. 549; Owens v. Railroad Co., 95 Mo. 169, 8 S. W. 350, 6 Am. St. Rep. 39; Hatfield v. Railroad Co. (Minn.) 22 N. W. 176, 53 Am. Rep. 14; White v. Railway Co., 61 Wis. 536, 21 N. W. 524, 50 Am. Rep. 154; Schroeder v. Railroad Co., 47 Iowa, 375. In this state the weight of authority seems to sustain the holding of the trial court. Railroad Co. v. White (Tex. Civ. App.) 51 S. W. 855; Railway Co. v. Pendery (Tex. Civ. App.) 36 S. W. 793; Railroad Co. v. Langston (Tex. Civ. App.) 47 S. W. 1029. See, also, Railway Co. v. Butcher, 83 Tex. 315, 18 S. W. 583. Since the opinion of the supreme court of the United States in Railroad Co. v. Botsford, supra, the courts of this state have held with the majority of the court in that case, and, in accordance with it, we sustain the ruling of the court below on the question. Besides, if the court, under the law, had the power to compel the examination, it is not shown that appellant was prejudiced by its ruling. Its motion was not supported by any affidavit showing any necessity for it, or any belief as to what such an examination would develop. Railroad Co. v. Brunker (Ind.) 26 N. E. 181. The appellee, prior to the trial, had been repeatedly examined by the appellant's surgeons, who testified in the case, and gave their opinions freely as to the nature and extent of his injuries. It is true, their testimony is directory in conflict with that of two members of their profession. Yet, from the known disposition of doctors to disagree, we cannot say, in the absence of some kind of showing on appellant's part what the examination by professional experts appointed by the court would probably develop, that appellant was prejudiced by the ruling.

3. The third paragraph of the court's charge is as follows: "If you believe from the evidence that on or about December 5, 1901, plaintiff was in the employ of defendant in its shops at San Antonio, and that while so employed he was under the direction and control of one Donnell, and that the said Donnell ordered the plaintiff and one Richter to take up and carry a plank or piece of timber, as alleged in plaintiff's petition, and that in obedience to said order the plaintiff and said Richter attempted to carry the said plank or timber; and you further find from the evidence that, while plaintiff had said plank or timber upon his shoulder, said Richter dropped his end of said plank or timber, and injured plaintiff, as alleged in plaintiff's petition; and you further find from the evidence that said Richter was physically unable to sustain or hold up his end of said plank or timber, and that defendant knew of this, or by the exercise of ordinary care could have known of it, and that it was negligence on the part of defendant to order the said Richter to assist in carrying said plank or timber, if he was so ordered, and that such negligence, if any, was alleged in his petition; and you further find from the evidence that the plaintiff was not guilty of negligence, and that he did not assume the risk,—then and in such case you will find for the plaintiff." This is assigned as error, the objection being that it is so framed as to authorize the jury to disregard the defense of negligence of fellow servant. The negligence charged by appellee was the order given him and Richter by appellant to take up and carry a timber with the knowledge on its part that Richter was physically unable to perform the service. The negligence of a fellow servant pleaded was that Richter failed to give notice to appellee of his inability to carry his end of the timber, and of his intention to let it drop. To sustain the assignment it must appear that there was such negligence of a fellow servant pleaded, and evidence introduced in support of the plea, as would at least tend to show that the negligence of a fellow servant was the proximate cause of appellee's injury. If the injury were caused by the joint result of the negligence of the appellant and the fault of a fellow servant, appellee's right to recover would be maintained; for the original negligence of appellant would still remain as the culpable and direct cause of the injury, and the intervening fault of Richter which might have contributed to it could not be regarded. Shear. & R. Neg. § 188; Busw. Pers. Inj. §§ 103, 201; Supple v. Agnew (Ill.) 61 N. E. 392. The act of negligence pleaded by appellee is in itself of such a character that it could not possibly be the negligence of Richter. It was the negligence of...