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

• Decision Date: 29 October 1902
• Parties: GALVESTON, H. & S. A. RY. CO. v. PUENTE et al.<SMALL><SUP>*</SUP></SMALL>
• Court: Texas Court of Appeals

70 S.W. 362

GALVESTON, H. & S. A. RY. CO. v. PUENTE et al.^*

Court of Civil Appeals of Texas.

October 29, 1902.

Appeal from district court, Bexar county; S. J. Brooks, Judge.

Action by Antonio B. Puente and others against the Galveston, Harrisburg & San Antonio Railway Company. Judgment in favor of certain of the plaintiffs, and defendant appeals. Affirmed.

Newton & Ward and Baker, Botts, Baker & Lovett, for appellant, Jas. Routledge and W. E. Cox, for appellees.

NEILL, J.

This suit was brought by Antonio B. Puente, for herself as widow of Pedro Puente, and as next friend for her minor children, Magario and Theodora, by her deceased husband, to recover $20,000 for his death, alleged to have been caused by the negligence of the company. Appellant answered by a general denial, a plea of contributory negligence, and, as to Antonia, the plea of limitations. The case was tried by a jury, who, upon a peremptory instruction of the court, found in favor of appellant on its plea of limitations as against the wife, and, on the issues of fact submitted, in favor of the minors for $1,000 each.

Conclusions of Fact.

On the 8th of September, 1898, Pedro Puente, the husband of Antonia B., and father of the minors, Magario and Theodora, was in the employ of appellant as a section hand. While returning from work on a hand car in charge of and operated under the directions of a section foreman, he was ordered by the foreman to get off the car, go in advance of it to the top of an embankment at a cut and curve in the road, and ascertain if a train were approaching. After ascending the embankment and perceiving the track was clear, he signaled the hand car to move forward. He then descended the embankment, and took his position in the center of the railway track, and there awaited the approach of the hand car for the purpose of resuming his seat upon it. Under such circumstances, it was the usual custom of the foreman to slow up or stop the car so that a member of his gang could get aboard with reasonable safety. This custom was known to Puente, and he took his position on the track and stood there expecting it would be observed in that instance. While standing there the brakes were applied to the approaching car, and it was slowing down. But when it came within a short distance of him the foreman ordered the brakes off. The order was obeyed, and the speed increased so as to render it dangerous to one of Puente's experience to board the car. While running at such speed, the foreman negligently ordered, by signal, Puente to get on the car. The foreman knew, or in the proper exercise of his duty should have known, that obedience to the order would be attended with extraordinary danger. Puente was inexperienced in getting on hand cars in motion, and on account of his inexperience, which was known to his foreman was ignorant of the danger incident to obeying such order. At least, the danger of obeying the order was not so glaring that a prudent man would not have undertaken it. The order not being manifestly unreasonable, nor the danger incident to its obedience so manifest that a man of ordinary prudence would not undertake to obey it, Puente, being impelled by a sense of the duty of obedience to his foreman, got on the car, and, in the act of doing so, was by its force thrown back under the rapidly descending handle bars, and was by them struck and injured, and such injury resulted in his death. The negligence of the section foreman in ordering the deceased to get on the car at the time and place and under the circumstances stated was the proximate cause of his death, unmixed with any negligence of deceased contributing thereto. By reason of such negligence, the appellees Magario and Theodora Puente were damaged in the sum of $1,000 each.

Conclusions of Law.

In its twelfth assignment of error, the appellant complains of the court's refusing peremptorily to instruct a verdict for the defendant. As a number of the assignments are directed to the court's charge, and this assignment involves such a consideration of the law pertaining to the facts as will aid us in disposing of such other assignments, it will be first considered.

Primarily, negligence vel non is a question of fact to be found by the jury. Only when but one conclusion can be drawn from the evidence can the court withdraw such question from the jury, or control them in its decision; for, if the evidence is such that men of ordinary intelligence may reach different conclusions, its submission to the jury is obligatory. Our conclusions of fact are based upon the evidence, and are such as must have been found by the jury. If the conclusion of negligence on part of appellant is warranted by the law applicable to the evidence, the requested charge should not have been given, unless it clearly appears from the undisputed testimony that deceased was guilty of contributory negligence. Did the facts warrant the jury in finding the appellant guilty of such a breach of duty it owed deceased as would, under the law, constitute negligence? It is the duty of the owner to superintend and control the forces and instrumentalities he employs in his work, and the duty of the servant to obey and perform under his directions; and the law will not cast the duties which belong to the one on the other, or refuse to enforce the obligations which either may have incurred. The master, by appointing a foreman, with power to direct the men under him when and how to do their work, thereby devolves upon him the performance of duties personal to the master. In exercising this power the foreman does not stand upon the same plane with those under his control. His position is one of superiority. Therefore, when be gives an order within the scope of his authority, if not manifestly unreasonable, those under him are bound to obey, at the peril of losing their situation; and such commands are, in contemplation of law, the commands of the master, and he is held responsible for the consequences. If the danger of obeying the order is not so glaring that no prudent man would have undertaken it, the law will not declare the servant's act of obedience negligence per se, but will leave it to the jury to say whether he ought to have obeyed or not. Railway Co. v. Duvall (Tex. Civ. App.) 35 S. W. 701; Railroad Co. v. Hicks (Tex. Civ. App.) 59 S. W. 1125; Railway Co. v. Sanchez (Tex. Civ. App.) 65 S. W. 893; Railway Co. v. Lawson, 101 Tenn. 406, 47 S. W. 489; Railway Co. v. Egeland, 163 U. S. 93, 16 Sup. Ct. 975, 41 L. Ed. 82; Allison v. Railway Co. (N. C.) 40 S. E. 91; Patton v. Railway, 27 C. C. A. 287, 82 Fed. 984, 42 U. S. App. 567. In view of the principles stated, and of the analogy of the cases cited to the one under consideration, we are of the opinion that it was for the jury to find from the evidence (1) whether appellant was guilty of negligence in giving the order; and (2) whether deceased was guilty of contributory...