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

• Decision Date: 11 January 1905
• Citation: 84 S.W. 1112
• Parties: GALVESTON, H. & S. A. RY. CO. v. ROTH.<SMALL><SUP>*</SUP></SMALL>
• Court: Texas Court of Appeals

84 S.W. 1112

GALVESTON, H. & S. A. RY. CO. v. ROTH.^*

Court of Civil Appeals of Texas.

January 11, 1905.

Appeal from District Court, El Paso County; J. M. Goggin, Judge.

Action by Alvaro Roth against the Galveston, Houston & San Antonio Railway Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Baker, Botts, Parker & Garwood and Beall & Kemp, for appellant. Patterson & Buckler, for appellee.

JAMES, C. J.

Plaintiff alleged: That he was engaged at Knox Station in guiding a pipe which worked inside the casing of a well. A chisel was attached to the end of the pipe, and the purpose was to cut out or remove an obstruction in the well. Plaintiff had fastened a pair of tongs to the pipe, and by the use of the tongs it was the duty of plaintiff to twist the pipe and turn it slightly as each stroke was made by the chisel or drill. The strokes were made by the engineer raising the pipe about three or four feet, and then by the use and operation of the engine it would be allowed to drop. That at the time of the accident complained of, and without any notice to plaintiff, the said engineer, Smith, negligently caused or allowed the engine to raise the pipe to the height of about 20 feet, and forced plaintiff to let go the pipe tongs, and negligently and without notice or warning to plaintiff shut off the throttle of the engine or unclutched the hoist and allowed the pipe, pipe tongs, chains, and apparatus to fall and strike plaintiff. Further, said hoisting engine was in a bad and defective condition —the clutch of same was out of order, and at the time of said accident the throttle of said engine and a back valve were being used to raise and drop the pipe, instead of the brake; that the brake was also in a bad and defective condition, and, said brake and clutch being in a defective condition, so that the same could not be used together, the engineer was using the throttle and back valve; that it was negligence on the part of defendant and of said engineer to raise said pipe, or to allow it to be raised, by means of said engine, 20 feet, without notifying plaintiff of his intention to do so; and it was negligence to shut off the throttle and unclutch said hoist and cause said pipe to fall without giving plaintiff an opportunity to get out of the way of the fall of said pipe and tongs, and by reason of said negligence plaintiff was injured. The petition alleged that Smith, the engineer, had control of the work and of the employés engaged in this work, and had superintendence over him. The answer was a general denial, and alleged the relation of fellow servant, assumed risk, and contributory negligence. The verdict recovered by plaintiff was for $10,500.

The court charged: "One who enters the employment of a railroad company assumes all the risks that are ordinarily incident to the business, but he does not assume any risks that may be brought about by the company's negligence unless he knows the same." The first assignment of error is that there should have been added to this the words "Or, in the ordinary discharge of his own duty, must necessarily have required the knowledge." The very point has been passed on by the court in Railway v. Engelhorn (Tex. Civ. App.) 62 S. W. 562; Railway v. Davis (Tex. Civ. App.) 80 S. W. 253. Had appellant asked for a more elaborate charge to include the more extended definition, it might have been different.

The second assignment complains of the court's charging the jury that Smith (the engineer) was defendant's vice principal, and not the fellow servant of plaintiff. It is not contended that the court should, under the evidence, have left the issue to the jury, but the contention is that the instructions should have been that they were fellow servants. Appellant's point will be exactly stated by giving the proposition advanced in the brief: "If a workman charged in some directions with the duty of superintendence does the negligent act complained of not as superintendent, but in the capacity of fellow servant to the plaintiff, the master will not be liable for such negligent act." The ninth assignment complains of the refusal of a charge that they...