Gulf, C. & S. F. Ry. Co. v. Knott

• Decision Date: 03 June 1896
• Citation: 36 S.W. 491
• Parties: GULF, C. & S. F. RY. CO. v. KNOTT.
• Court: Texas Court of Appeals

36 S.W. 491

GULF, C. & S. F. RY. CO. v. KNOTT.

Court of Civil Appeals of Texas.

June 3, 1896.

Appeal from district court, Collin county; J. E. Dillard, Judge.

Action by Lee Knott against the Gulf, Colorado & Santa Fé Railway Company. Judgment for plaintiff, and defendant appeals. Reversed.

J. W. Terry and Chas. K. Lee, for appellant.

NEILL, J.

The appellee, plaintiff below, instituted this suit in the district court of Collin county, to recover of appellant damages for injuries alleged to have been sustained about the 30th day of June, 1890; plaintiff alleging, in substance, as follows: That about the ____ day of May, 1890, he, then a minor, under 21 years of age, was employed by defendant's section boss to work as a section hand, and at the time he was inexperienced and ignorant of the several risks and grievances incident to raising and replacing wrecked cars on the track, and the same had not been explained to him by the section boss or any other person; that he was so ignorant on the date of his injuries, and neither by nature and intelligence nor experience was he able to or did comprehend such dangers, and the same had not been explained to him; that one Webb was section foreman of the section, and supervising the construction and repair of the road, and had supervision and control over the same, with power to employ and discharge hands; that Webb knowing of plaintiff's minority, employed him as a section hand without explaining the risks incident to raising wrecked cars; that one Squires was foreman of a wrecking crew operating on defendant's road, in charge of a distinct and different branch of service, having charge and supervision of all hands employed at and about wrecked cars; that, about June 30, 1890, a wreck occurred on the defendant's road and Webb ordered Knott and his fellow section hands to assist in raising the wrecked cars; that, to enable them to raise the wrecked cars, the defendant furnished jackscrews, which are not ordinarily used for such purposes, and which was unknown to plaintiff; that it also furnished a derrick, block, and tackle, operated and managed by a locomotive of defendant; that such jackscrews were defective and out of repair, were worn and weak, and would not hold, and the hydraulic jacks were not supplied with oil, were weak and out of repair, and were placed in the hands of a man who did not understand how to operate them; that plaintiff was ignorant of the defect, and that the party in charge of the same did not know how to use it; that the said jacks were carelessly placed under one end of the wrecked car by and under the supervision of Webb and Squires, and by means of said jackscrews so defective, and by means of the block and tackle, one end of the car was raised; that Webb directed plaintiff to climb on said car to assist in loosening the ropes then supporting the car, also to cast off ropes on said car; that plaintiff attempted to obey the orders, and climbed on the car; that this was dangerous, and known to Webb to be so; that plaintiff, by reason of his inexperience, was ignorant of the same; that, when plaintiff was on said car, said Squires, in order to get another hitch on the car, caused and directed the engine to slack up, and thereby permitted said car to careen and turn; that Squires well knew that this would cause the car to turn; that when the car turned the defective screws were unable to sustain the car, and the same turned partly over, and that the negligent slackening of the derrick caused the car to careen, and that said slackening was negligent; that plaintiff was placed in a position of apparent danger, where he was forced to exercise his discretion whether to remain on the car and be crushed by the car rolling over him, or jump from the same, and that said Webb directed him to jump; and that it was necessary for him to jump, in the exercise of sound discretion, to save his life,—whereby plaintiff was injured, to his damage $12,000, etc. Defendant answered by general and special exceptions, general denial, plea of contributory negligence, and that plaintiff's injuries, if any, were the result of dangers incident to his employment, which he had contracted to assume, and dangers which he knew or ought to have known by the exercise of ordinary care.

As a number of the assignments of error are aimed at the court's charge, and others complain of the refusal of special instructions asked by appellant to cure its defects, we will, for the purpose of having the points raised by such assignments and having what we shall say in our consideration of them clearly understood, insert here so much of the charge as may subserve that purpose: "The jury are instructed that it is the duty of employers to furnish their employés with reasonably safe machinery and implements when required for use by the employé in the line of his duty. The jury are further instructed that it is the duty of employers to use reasonable precaution to prevent their employés and servants from receiving injury while pursuing their labors. The jury are further instructed that it is the duty of an employer, and his servants and agents acting for him, to refrain from placing an inexperienced employé or laborer in a dangerous service without first warning and instructing such employé of the dangers incident to such service. A fellow servant is another servant or person engaged in the same kind of service, under the same principal or director. A person employed by another to perform any service, with power to employ other persons and to direct them in the performance of their labors, with power to discharge such persons, in law is regarded as the agent of his principal, and his words and acts within the scope of his duties are binding upon the principal, and a person employed and acting under such an agent does not occupy the relation of fellow servant to such agent. The principal is not responsible in damages for an injury resulting from the act of a fellow servant. The principal is responsible, however, in damages, for any personal injury to his employé resulting from the negligent acts of conduct of his agent, under whose direction and supervision such employé is laboring at the time. It is the duty of the laborer or employé to exercise reasonable and proper care and caution, while engaged in the service of his master or employer, to prevent injury to his own person. `Reasonable and proper care,' as used in this charge, means such reasonable caution...