Houston & Great N. R.R. Co. v. Miller

• Decision Date: 01 January 1879
• Citation: 51 Tex. 270
• Parties: HOUSTON AND GREAT NORTHERN RAILROAD CO. v. JOSEPH E. MILLER.
• Court: Texas Supreme Court

51 Tex. 270

HOUSTON AND GREAT NORTHERN RAILROAD CO.

v.JOSEPH E. MILLER.

Supreme Court of Texas.

1879.

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

Baker & Botts, for plaintiff in error, in a brief and argument, thoroughly discussed the main question involved, with exhaustive citation of authorities. In reply to suggestions from the court as to the effect, if any, as to the responsibility of the railroad company, of the minority of the plaintiff, the following authorities were cited and discussed: Wood's Master and Servant, sec. 10, p. 15; Nashville Railroad Co. v. Elliott, 1 Cold., 611; Schouler on Dom. Rel., 561; Medbury v. Watrous, 7 Hill, 110;Chicago and Great Eastern Railroad Co. v. Harney 28 Ind., 28;Moss v. Pacific Railroad Co., 49 Mo., 167;King v. Boston and Worcester Railroad Co., 9 Cush., 112;Texas and Pacific Railroad Co. v. Murphy, 46 Tex., 356.

John T. Harcourt, for defendant in error.--Counsel for plaintiff in error has displayed great industry in collecting authorities in support of the “British rule” as to the liabilities of a railroad company for injuries caused by the negligence of a fellow-servant.

We do not feel called upon to pursue this line of investigation. It is neither interesting nor profitable, so far as it can have any practical application to the present case. Here, there can be no hair-splitting reasoning about the waiver of risk in a dangerous service in the employment by contract.

We maintain that no contract was made.

“A child cannot make a contract or waive a legal right.” (Shear. & Red. on Neg., sec. 97.)

Our statute law settles this much beyond all question.

“Male persons under twenty-one years of age are minors; they are sometimes called infants.” The law supposes that minors, persons of unsound mind, and habitual drunkards have not capacity to take care of their persons or estates. It therefore provides that there shall be certain persons whose duty it shall be to take care of them. (Paschal's Dig., arts. 6890, 6892.)

The plaintiff in error cannot defend the wrong done upon the ground of an illegal contract it had made with a minor. (Derocher v. Continental Mills, 58 Maine, 217;Whitmarsh v. Hall, 3 Denio, 375.)

If, however, it shall be held that the minor was capable of contracting in this case, we then insist that the “British rule” ought not and cannot be maintained, upon principle or authority, as the correct rule to be promulgated in this class of cases in this State.

The reasoning upon which the distinction is based is fallacious and unsound. The employés cannot, from the nature of the service, know anything of the skill and care of their associates. They must rely upon one rigid requirement, and that is, that none but the most skillful shall be put in charge of such powerful machinery.

In England, there were grades and classes in society and different grades in the rank and position of servants.

With us, at the present day, it is almost a crime to say that there are any “servants or fellow-servants.” It is as great a fiction in law as the relation of master and servant when applied to father and son. The nomenclature of the books is not at all applicable to the present condition of the laboring classes.

We must now speak in plain language and in proper terms.

We have principal and agent, and contractors and laborers, and employers and employés. The ditcher with his spade is the peer of the conductor or engineer. The later decisions on this question, coming from the strongest minds, have broken away from the old rule.

In the recent leading case of the Louisville and Nashville Railroad Co. v. Collins, 2 Duvall, (Ky.,) 114, Judge Robertson has, in his felicitous style, stated the questions and decided the law in this class of cases. And the same stern, practical doctrine is maintained in 20 Ohio, 415;3 Ohio St., 201;45 Ill., 197;52 Ill., 183, 401.

In the case above cited, Judge Robertson says, that “when, on a question of negligence, the testimony is conflicting, the jury have a right to decide the character of the negligence.” (Philadelphia and Reading Railroad Co. v. Spearen, 47 Penn. St., 300.)

In the present case, the Houston and Great Northern Railroad Company was charged with negligence for employing an incompetent engineer. (Wright v. New York Central, 28 Barb., 80.) * * *

BONNER, ASSOCIATE JUSTICE.

This suit involves the question of the liability of the master at the suit of an employé, who was a minor, for damages sustained by reason of the alleged negligence of a fellow-servant; the liability of the master to the father of the minor, who was employed without the consent of the father, having been considered by this court in a branch of this same case. (Railroad Co. v. Miller, 49 Tex., 322.)

Since the trial of the cause below, it has become the settled law of this court, in accordance with the well-established line of decisions in Great Britain and in this country, that the master is not liable for injuries sustained by his servant through the negligence or default of a fellow-servant. (Price v. Navigation Co., 46 Tex., 535;Robinson v. Railway Co., 46 Tex., 540.)

The plaintiff was the employé of the defendant company, and his injuries are alleged to have been caused by the negligence of the engineer, who was a fellow-servant. Tested by the rule announced in the above cases, so much of the first subdivision of the charge of the court as authorized the...