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

• Decision Date: 25 March 1890
• Citation: 13 S.W. 562
• Parties: GALVESTON, H. & S. A. RY. CO. <I>v.</I> SMITH.
• Court: Texas Supreme Court

13 S.W. 562

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

SMITH.

Supreme Court of Texas.

March 25, 1890.

Appeal from district court, Colorado county.

On November 30, 1886, the plaintiff, Michael Smith, was in the employ of the defendant railway company as a section hand. Early in the morning of that day, he, with other section hands, was carried, in a caboose attached to an engine belonging to defendant, from Smith's Junction, in Colorado county, to Alleyton, in the same county. When they reached Alleyton the train ran on past the station eastward in order to back in upon a switch and get some flat cars lying there to haul sand upon. But as they were backing in, or about to back in, the engine and caboose were run into by a special freight train coming from the east, whereby the plaintiff, being still in the caboose, sustained the injuries complained of. The accident occurred about 7 o'clock in the morning, when it was very foggy. At Smith's Junction the defendant's road-master, John Kennedy, had also got on the train. He was in charge of the working party, and had authority to employ and discharge men engaged in the class of work the plaintiff was then employed in. There was a conflict of evidence as to whether the road-master had authority over the working train further than to direct the conductor and engineer where the party was to go, and what work was to be done. The plaintiff testified that said road-master had entire charge of all the movements of the train, and was responsible for its management. It was shown, however, that trains generally get the orders for their movements from the operators at telegraph stations; that said orders come from the superintendent of the company, through the train dispatcher, and would be delivered to the conductor and engineer. The orders under which the train was moving when the accident occurred were received by the conductor at the telegraph station the night before, and were as follows: "Work to-morrow, Nov. 30th, between Columbus and Eagle Lake, avoiding regular trains, protecting against specials both ways." The verdict was for the plaintiff. Defendant appeals. Additional facts are stated in the opinion.

Blown & Dunn, for appellant. Delany, Kennon & Harrison, for appellee.

COLLARD, J.

The court instructed the jury as follows: "(10) If you find from the evidence that plaintiff was injured as hereinbefore stated, and that such injuries resulted from the negligence of defendant's road-master, and that said road-master had full control over the movements of the train on which plaintiff was at the time of collision, (if any occurred,) and did actually direct and control the movements of said train, and that he had general power to employ and discharge men in defendant's employ, working in the same capacity in which plaintiff was then working, — in that case the negligence of the road-master would be deemed the negligence of defendant." On the same subject the defendant requested the following special instructions: "No. 2. You are charged that the plaintiff, being one of the employes of defendant, cannot recover for any injury he may have sustained while in its service, on account of the negligence of another employe, no matter in what grade he may have been; and the fact that such co-employe was in a different grade of defendant's employment from the plaintiff will not affect this rule, and you will find for defendant. No. 3. The plaintiff, by the allegations of his petition, being an employe of defendant, entered its service upon the implied understanding that he would assume all the risks ordinarily incident to such employment, among which were the risks of injuries resulting from the negligence of a fellow-employe. Wherefore, if you believe from the evidence that plaintiff was injured, that such injury resulted from the negligence of either the road-master, John Kennedy, or the conductor in charge of the train on which plaintiff was at the time of the injury, then he cannot recover, and you will find for the defendant." Appellant assigns the following error: The court below erred in refusing to instruct the jury, as asked by the defendant in its charges No. 2 and No. 3, and in giving in lieu of them the tenth paragraph of the charge asked for by the plaintiff, wherein the jury were told that the road-master's negligence would be the negligence of defendant, for the reason that by the undisputed evidence in the case the road-master was only the fellow-servant of the plaintiff; and if, by the negligence of the former the latter was injured, there would be no liability on the part of the defendant for such injury. As to the road-master's authority over a work train and its operatives we make the following extract from plaintiff's testimony: "All the personal knowledge I have of the amount of authority that Mr. Kennedy has is that he is road-master. If an engineer don't suit him he can send him off and get another, that is, an engineer that is working for him. Every train that I have seen in that business the road-master, as long as he stays with it, has charge of it. As long as the road-master has charge of that kind of a train he has the right to discharge the engineer, or at least to send him off and get another. The road-master would put the conductor off, too, if he did not suit. I know that to be so. I know that he can send the conductor away out of his employ and get another if he don't suit. He can discharge the conductor or engineer out of his employ, but I could not say he could discharge them out of the company's service. The road-master has this authority only when the train is with him."

It is needless to say that this evidence is in conflict with that adduced by defendant. The question presented by the assignment of error is, was the road-master a fellow-servant of plaintiff, and did the charge of the court give the jury the proper criterion to determine the question? There is difficulty in answering these questions because of the contrariety of opinions upon the subject. It cannot be decided by the mere grade of the company's agent charged with the negligence, as almost all grades and ranks in railway service have been considered and decided differently by different courts. See 2 Thomp. Neg. 1028-1038; Patt. Ry. Acc. Law, §§ 324, 325. This variety of decisions grows out of the difference in the application of the principle, which is claimed to be the test of fellow-servant. Mr. Thompson, as a result of his investigation of the authorities, formulates a general rule as follows: "All who serve under the same master, work under the same control, derive authority and compensation from the same common source, are engaged in the same general business, though in different grades or departments of it, are fellow-servants who take the risks of each other's negligence." 2 Thomp. Neg. p. 1026, § 31. The same rule, with some modifications, is given by other authors. 3 Wood, Ry. Law, § 388. As applicable to railroad servants a text-writer furnishes the following rule: "It therefore may be laid down as the result of the authorities that the common object of railway service, being that of fitting the line for traffic, and of carrying on the traffic, all servants who are working for the accomplishment of that common object are fellow-servants within the rule." Patt. Ry. Acc. Law, § 323. The application of the rule in anything like a strict sense would make all employes and agents of a railway fellow-servants, however distinct their employment, rank, authority, or relation to the company. So nearly all the relations of employes have been decided to create, and not to create them fellow-servants. It has been decided in this state that the negligence of the conductor having control of the train and its operatives is not chargeable to the company, because he is a fellow-servant of the subordinate operatives. Superiority of rank and authority in the service is no test. Robinson v. Railway Co., 46 Tex. 550. We cannot review the authorities holding contrary views concerning the same relations of superiors and subordinates. It is sufficient to say that they cannot be reconciled upon the rules announced and quoted above. The supreme court of the United States were divided as to whether the company was liable for the negligence of the conductor of a train, causing injury to an engine driver by a collision, a bare majority of the court affirming a judgment in favor of the injured party. Railway Co. v. Ross, 112 U. S. 377, 5 Sup. Ct. Rep. 184. In treating the subject of vice-principals Mr. Patterson speaks of the test adopted in some cases, holding that if the company grant to a servant...