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

• Decision Date: 27 April 1896
• Citation: 35 S.W. 364
• Parties: GULF, C. & S. F. RY. CO. v. WARNER.
• Court: Texas Supreme Court

35 S.W. 364

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

Supreme Court of Texas.

April 27, 1896.

Certified question from court of civil appeals of Fourth supreme judicial district.

Action by Charles C. Warner against the Gulf, Colorado & Santa Fé Railway Company. Judgment for plaintiff, and defendant appealed to the court of civil appeals. From such court a question is certified.

J. W. Terry, for appellant. Poindexter & Padelford, for appellee.

DENMAN, J.

The court of civil appeals have certified to this court a question and explanatory statement, as follows:

"On the 7th day of October, 1893, appellee, an employé of appellant, at that time, while engaged with his duties as switchman in the railroad yards of appellant, in Cleburne, was injured by a car passing over and crushing his leg. The car that inflicted the injury was being pushed by a locomotive in charge of a switch engineer, who was an employé of appellant, and while switching was being done by a switch crew of which both appellee and the switch engineer were members. The switch crew consisted of the foreman, the engineer, the fireman, and switchmen. The foreman directed the switching, as it was his duty to do. The engineer had no authority or control over the switchmen. The switchmen were in the transportation department, and the switch engineer in the mechanical department. The yardmaster employed and discharged the switchmen, and the master mechanic employed and discharged the engineers. The duties of an engineer require skilled labor, and the duties of a switchman do not.

"Question: Was the switch engineer a fellow servant of the switchman who was injured, under the provisions of the fellow servants act of 1893?"

The act referred to, as far as it affects the question certified, is as follows:

"An act to define who are fellow servants, and who are not fellow servants, and to prohibit contracts between employer and employés, based upon contingency of the injury or death of the employés, limiting the liability of the employer for damages.

"Section 1. Be it enacted by the legislature of the state of Texas: That all persons engaged in the service of any railway corporation, foreign or domestic, doing business in this state, or in the service of a receiver, manager, or of any person controlling or operating such corporation, who are entrusted by such corporation, receiver, or person in control thereof, with the authority of superintendence, control, or command of other persons in the employment of such corporation, or receiver, manager, or person in control of such corporation, or with the authority to direct any other employé in the performance of the duty of such employé, are vice principals of such corporation, receiver, manager, or person controlling the same, and are not fellow servants of such employé.

"Sec. 2. That all persons who are engaged in the common service of such railway corporation, receiver, manager, or person in control thereof, and who, while so employed, are in the same grade of employment and are working together at the same time and place, and to a common purpose, neither of such persons being entrusted by such corporation, receiver, manager, or person in control thereof, with any superintendence or control over their fellow employés or with the authority to direct any other employé in the performance of any duty of such employé, are fellow servants with each other: Provided, that nothing herein contained shall be so construed as to make employés of such corporation, receiver, manager, or person in control thereof, fellow servants with other employés engaged in any other department or service of such corporation, receiver, manager, or person in control thereof. Employés who do not come within the provisions of this section shall not be considered fellow servants."

Gen. Laws 1893, p. 120.

It will be observed that the caption of the act declares its purpose to be "to define who are fellow servants and who are not fellow servants," and that section 2 completely accomplishes such purpose by first defining who are fellow servants and then declaring that "employés who do not come within the provisions of this section shall not be considered fellow servants." This section divides all employés into fellow servants and non fellow servants, and gives the distinctive characteristics of the former, but not of the latter. The purpose of the statute was accomplished by limiting and definitely determining the employés who should thereafter be classed as fellow servants, for whose negligence the employer should not be responsible to another fellow servant; and it was unnecessary to deal further with such employés as did not come within this...