Hines v. Welch

Decision Date03 March 1921
Docket Number(No. 2385.)
Citation229 S.W. 681
PartiesHINES et al. v. WELCH.
CourtTexas Court of Appeals

Appeal from District Court, Van Zandt County; Joel R. Bond, Judge.

Action by W. W. Welch against W. D. Hines and others. Judgment for plaintiff, and defendants appeal. Affirmed.

J. L. Welch chartered a car from the agent of the railway company at Grand Saline to transport his household goods to Nacogdoches. The railway agent placed the car for loading on a side track. W. W. Welch, the appellee, 33 years old, was assisting J. L. Welch in loading the car. W. W. Welch was inside the car, and J. L. Welch was standing in a wagon next the door of the car, handing the goods to W. W. Welch, who arranged them in the car. An engine switching cars to the side track shoved a car against the car being loaded. At the time of the impact, which was forcible, the appellee "started to reach for a sack of salt which was on the edge of the wagon bed, to bring it into the car, and the car was struck and threw me out on the wagon wheel, on my right side, and I further fell from the wagon wheel, on my hip, on the cross-ties." For the injuries, which appear from the evidence to have been very serious and permanent, the appellee sues for damages, alleging that "the employees of the defendant negligently shoved a car against the car in which this plaintiff was working loading said car to be transported." The defendant answered by general denial and pleaded contributory negligence as follows:

"(2) Defendant represents to the court that, if plaintiff was injured as charged in his petition, which defendant does not admit, but denies, he was injured as a direct and proximate result of his own negligence or the negligence of his father, Jack Welch, which caused and contributed to cause his injury, in that at the time of the alleged injury of the plaintiff he was engaged in aiding and assisting his father in loading household goods and freight into a box car of the defendant to be transported by it to the place of destination, and while loading the box car from the wagon that had been placed by the side of the car, the plaintiff and father was loading, the plaintiff was on the inside of the car to receive such freight and goods.

"(3) That the defendant in moving the car that coupled to the car that the plaintiff was loading did it in a careful and prudent manner, gave all signals that they were going to couple the car, and the brakeman calling out to the plaintiff that they were going to couple on the car or back against it, giving him full notice of the handling of the train and believing that father and son knew of the purpose of defendant of backing against the car. If the plaintiff had exercised ordinary care for his safety, he would not have remained in a dangerous position that caused or would have caused plaintiff's injury; that plaintiff negligently and carelessly, without regard to notice given him by the defendant through its employees, refused to obey the notice and remained standing in a dangerous position, and by his own contributory negligence caused and produced his injury."

The jury made answer to the special issues submitted: (1) That the plaintiff did not have notice that the car was going to be moved; (2) that the failure of the defendant's agent to notify the plaintiff that the car was to be moved was negligence proximately causing the injury; (3) that the agent in charge of the train negligently handled the cars, causing the impact and lurch, proximately resulting in the injury; (4) that the plaintiff while engaged in loading the car used ordinary care to avoid injury, and was not guilty of contributory negligence; (5) that he suffered damages, stating the amount. The evidence supports the findings of the jury, and they are here adopted.

The appellants' first assignment of error is that—

"The court erred in refusing to submit to the jury in its main charge that notice given to the father of the intention of the appellant to move the car which the father and the appellee were engaged jointly in loading was notice to the appellee."

The evidence relied on is stated in the appellants' brief as follows:

"The brakeman whose duty it was to give notice to those engaged in loading the cars testified that he walked down by the side of the car that appellee and his father were loading, and he observed appellee standing in a place of perfect safety, and that he would be in no danger in the moving of the car if he remained in the place where he was then standing; that he walked to the east end of the car and saw appellee's father drive his wagon up next to the car door in which appellee was standing; that he then called out to the father of appellee not to place his wagon by the car, that they were going to move the train and for him to watch out. The father of appellee testified that he heard the brakeman call to him, but that he was hard of hearing, and that he didn't understand what he said, but that he drove the wagon up to the car after he heard the brakeman call to him, and he and appellee were engaged in unloading a sack of salt from the wagon and into the car when the train bumped into the car, and appellee was knocked down and injured."

The statement of the evidence is approved. The record does not show that appellee heard the brakeman tell the father that the car was to be moved, or that appellee had any notice of warning or knew of the intention to move it.

Wynne & Wynne, of Kaufman, for appellants.

Simpson, Lasseter & Gentry, of Tyler, for appellee.

LEVY, J. (after stating the facts as above).

The appellant requested the court, and the court refused, to submit to the jury for finding, in effect: (1) Whether or not J. L. Welch, the father, was guilty of negligence in driving his wagon to the door of the car for unloading after he had been notified that the train would move against the standing car; and (2) whether or not such negligence of J. L. Welch, the father, caused or contributed to cause the injuries of the plaintiff W. W. Welch. The evidence shows, as very correctly stated in appellants' brief, that—

"The father was moving, and the appellee was aiding his father in loading household goods in the car placed by appellant for the purpose on the loading track, and it became necessary for appellant to move the car in order to switch other cars ahead of it on the side track. The employee of appellant before moving the car saw appellee standing in the car in a place of safety in the car, and saw J. L. Welch, the father, driving his wagon towards and...

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6 cases
  • Wanda Petroleum Co. v. Hahn
    • United States
    • Texas Court of Appeals
    • December 29, 1972
    ...The 'joint enterprise' doctrine is founded on principles of agency. See 'Imputed Contributory Negligence' by Dean Page Keeton, 13 Tex.Law Rev. 161, Hines v. Welch, 229 S.W. 681 (Texarkana, Tex.Civ.App., 1921, no writ hist.) and 11 Tex.Law Rev. 263. Because this is true, the rule forbidding ......
  • Fuller v. Flanagan
    • United States
    • Texas Court of Appeals
    • April 30, 1971
    ...doctrine is founded on principles of agency . See 'Imputed Contributory Negligence' by Dean Page Keeton, 13 Tex .Law Rev. 161, Hines v. Welch, 229 S.W. 681 (Texarkana, Tex.Civ.App., 1921, no writ hist.) and 11 Tex.Law Rev. 263. Because this is true, the rule forbidding the imputing of negli......
  • West Texas Coaches v. Madi
    • United States
    • Texas Court of Appeals
    • February 8, 1929
    ...Numerous Texas authorities are cited by the last authority as supporting the rule stated. Others to the same effect: Hines v. Welch (Tex. Civ. App.) 229 S. W. 681; West v. Bruns (Tex. Civ. App.) 294 S. W. 235; Eastern Texas Electric Co. v. Smith (Tex. Civ. App.) 298 S. W. 314; Central Texas......
  • Truiyipfeller v. Crandall
    • United States
    • Maine Supreme Court
    • June 17, 1931
    ...v. City of Thief River Falls et al., 84 Minn. 21, 86 N. W. 763; 20 R. C. L., § 122, page 149. Or, as stated in Hines et al. v. Welch (Tex. Civ. App.) 229 S. W. 681, 683, "a joint enterprise, within the meaning of the law of imputed negligence, is, as given in 20 R. C. L. p. 149, § 122: 'The......
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