H. & T. C. R. R. Co. v. Myers

• Decision Date: 26 April 1881
• Docket Number: Case No. 4320.
• Citation: 55 Tex. 110
• Parties: H. & T. C. R. R. CO. v. JOE ALLEN MYERS.
• Court: Texas Supreme Court

55 Tex. 110

H. & T. C. R. R. CO.

v.JOE ALLEN MYERS.

Case No. 4320.

Supreme Court of Texas.

Apr. 26, 1881.

ERROR from Harris. Tried below before the Hon. James Masterson.

Joe Allen Myers, by his sister and next friend, Lou R. Myers, filed this suit against the Houston & Texas Central Railway Company, on the 1st day of June, 1874, to recover of that company damages sustained by him, because of personal injuries received on the 17th day of September, 1873, while in the employment of said company as a brakeman.

The petition charged that he was hurt while endeavoring to couple a train, and that he was so hurt because the said company had failed to furnish suitable links to make couplings, and because of the incompetency of the party who had charge of the engine at the time he was injured. The plaintiff also alleged that the company knew before and at the time he was injured of the incompetency of its servant, and with this knowledge retained him in their employment.

Plaintiff alleged that he was injured on the 17th day of September, 1873, at Manor station, on the line of defendant's road, in Travis county, Texas, while he, in his capacity as a brakeman, was endeavoring to couple cars; that the injury was caused by an incompetent person having charge of the engine, and who suddenly, and without giving any signal, backed the train upon him; that the incompetency of the person having charge of the engine was then known to defendant, but not to plaintiff; and that another cause of his injury was, that he was compelled to use a short, bent and defective link that was furnished to him by defendant with which to make the coupling, and that he did not at the time, until it was too late, know that such link was defective, but that such defect was known to defendant before and at the time plaintiff attempted to use it; that defendant failed and refused to provide suitable links with which to make couplings; that in consequence of said injury he had been put to great expense, in the sum of $700 for medical attention and medicine; and for nursing, in the further sum of $750; that he had been injured and his hand destroyed for life; that he had suffered much physical pain, for all of which he claimed damages in the sum of $30,000; that said injury was caused by no fault or negligence on his part, but that his injury was wholly caused by the fault and negligence of the defendant, and prayed for citation, and, upon hearing, for judgment for damages claimed, together with costs and for general relief.

Defenses filed were: general demurrer; general denial; and special answer, charging that if plaintiff was ever injured, it was by his own carelessness, and not by the fault, carelessness or negligence of defendant.

On August 11, 1874, the court made and caused to be entered the following order in substance:

“L. R. Meyers, guardian of the minor, J. A. Myers, has leave to make herself party plaintiff and leave to amend.”

November 17, 1874, the plaintiff filed an amended petition, in substance, that his injury was caused by the gross carelessness and culpable negligence of defendant's servants; that they were totally incompetent, and that their incompetency was know to defendant before and at the time plaintiff was injured.

The case was tried on the 25th day of November, 1875, and resulted in a verdict and judgment in favor of appellee and against appellant for $10,000.Geo. Goldthwaite and Baker & Botts, for appellant.

Collard & Field and Stuart & Barziza, for appellee, in support of their position that the company was liable for failing to furnish a proper link for coupling, and on account of the incompetency of the fireman who undertook to act as engineer, cited Houston & Texas C. R. W. Co. v. Dunham, 49 Tex., 181;G. N. R. R. Co. v. Doyle, Id., 190; G., H. & S. A. R. R. Co. v. Dillahunty, decided by this court March 26, 1880, and reported in Texas Law Journal, June 2, 1880; 1 Redfield's Law of R. W., 4th ed., p. 518; Wharton on Neg., pp. 206-224; Gilman v. Easton R. Co., 10 Allen (Mass.), 236;Gilman v. E. R. Co., 13 Allen (Mass.), 441;Faulkner v. Erie R. R. Co., 49 Barb. (N. Y.), 327;Chicago & G. E. R. Co. v. Hornly, 28 Ind., 30, 31; Ford v. Fitchburg R. R., 10 Mass., 260; Snow v. Housatonic, 8 Allen (Mass.), 441; Hand v. Ver. & Can. R. R., 32 Vt., 473; Smith v. N. Y. & H. R. R. Co., 6 Duer, 225; Chicago R. R. Co. v. Lovett, 45 Ill., 197;Flike v. The B. & R. R. Co., 53 N. Y., 549;Harper v. St. Louis R. R., 47 Mo., 567; Saunry v. N. Y. Cent., 49 N. Y., 521;Greenleaf v. Ill. C. R. R. Co., 29 Iowa, 36-49; Gibson v. Pacific R. R., 46 Mo., 263.

They also contended that knowledge on the part of plaintiff that one of the links was defective, and that the train was not properly supplied with links, does not impair his right to recover, citing H. & G. N. R. R. Co. v. Randall, 50 Tex., 260;Brandon v. Man. Co., 51 Tex., 121; Greenleaf v. D. & Sioux City R. R. Co., 33 Iowa, 35; Krory v. Chicago R., 32 Iowa, 357;Snow v. Housatonic R. R., 8 Allen, 441;Keegan v. W. R. R. Co., 8 N. Y., 175;Chicago & A. R. v. Shannon, 43 Ill., 338;Greenleaf v. Ill. C. R. R. Co., 29 Iowa, 14.

WATTS, J. COM. APP.

By the pleadings the appellee sought a recovery upon the two grounds:

1st. That the injury was caused by the gross neglect and incompetency of his fellow servants, and that the company knew of their said incompetency before the injury, and did not discharge them, etc.

2d. That the injury was the direct cause of a defective coupling link that the company had furnished for use on its train, and that the company knew of the defect at and before the injury, but the defect was not known to him at the time.

As to the first branch of the case thus made, the principles of law necessary to be applied in the disposition thereof are well settled. In operating trains upon a railroad, the company is bound to use reasonable care in selecting the servants to perform the various and often hazardous duties necessary to that end; and that each servant thus engaged has the unquestioned right to rely upon, and expect, that the company will use such care in selecting his fellow servants. If the servant is injured, while in the discharge of his duty, by the negligence or incompetency of his fellow servants, and it is made to appear that the company had not used reasonable care in selecting such fellow servants, or, after being informed of their...