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

• Decision Date: 16 December 1903
• Citation: 78 S.W. 43
• Parties: GALVESTON, H. & S. A. RY. CO. v. CLOYD.
• Court: Texas Court of Appeals

78 S.W. 43

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

Court of Civil Appeals of Texas.

December 16, 1903.

Appeal from District Court, Medina County; I. L. Martin, Judge.

Action by Thomas Cloyd against the Galveston, Harrisburg & San Antonio Railway Company. From a judgment for plaintiff, defendant appeals. Reversed.

Baker, Botts, Baker & Lovett and Ellis & Love, for appellant. C. L. Bass, V. H. Blocker, and J. R. Storms, for appellee.

FLY, J.

Appellee sued for and recovered damages alleged to have accrued through the negligence of appellant. The verdict and judgment was for $6,000.

Appellee was 22 years old when injured, and was born and reared in Medina county, and that was undoubtedly the place of his residence so long as he was a minor and incapable of destroying the domicile of his origin or birth. He had lived in numbers of places, but the evidence justified the finding that his residence was in Medina county. Appellee had been at work in Pecos county, where he was injured, for several weeks, but there was no evidence indicating any intention to make that county his residence; and to hold that the residence contemplated in the statute is the place where a person is existing at the time of the injury would have the effect of making "residence" synonymous with "the county in which the injury occurred." The evidence certainly did not tend to show a legal residence in Pecos county, and appellee either had his residence in Medina county, or he had none at all. The court correctly charged on the question of venue, and the special charges on that subject were properly refused.

In the case of Long v. Railway, 94 Tex. 53, 57 S. W. 802, the fellow-servant statute is discussed; and it is there held that section 3 of the act of June 18, 1897, p. 14, c. 6 (article 4560h, Sayles' Ann. Civ. St. 1897) which defines fellow servants, was substituted for section 2 of the act of 1891, and must govern in the consideration of the subject, so far as the employés of persons, receivers, or corporations controlling or operating railroads or street railways are concerned. Such employés who are engaged in the common service of those operating or controlling railways, "in the same grade of employment and are doing the same character of work or service and are working together at the same time and place and at the same piece of work and to a common purpose, are fellow servants with each other. Employés who do not come within the provisions of this article shall not be considered fellow servants." According to the testimony offered by appellee, Ramon Escamillo was what is known in railroad parlance as a "hostler" and "wiper," and was also a "machinist helper," and, in addition, was to do what he was told. Appellee was a "wiper" and "roustabout." It was his duty to wipe the links and engines, and perform other labor that might be required of him. The testimony of appellant showed that Ramon and appellee were engaged in the same kind of work. It was shown by the testimony offered by appellee that at the time of the injury he was under the engine in a ditch, wiping a "link," which appears to be a part of the engine; and, while he was so engaged, Ramon Escamillo, who was in the cab of the engine, reversed the lever, and it flew up and hit appellee in the side, inflicting the injury complained of. There can be no question that Ramon Escamillo and appellee were in the common service of appellant; that they were in the same grade of employment, and were doing the same character of work or service; and that they were working together at the same time and place. It is also clear that, at...