Houston & T. C. R. Co. v. Talley

• Decision Date: 05 December 1896
• Citation: 39 S.W. 206
• Parties: HOUSTON & T. C. R. CO. v. TALLEY.<SMALL><SUP>1</SUP></SMALL>
• Court: Texas Court of Appeals

39 S.W. 206

HOUSTON & T. C. R. CO. v. TALLEY.¹

Court of Civil Appeals of Texas.

December 5, 1896.

Appeal from district court, Grayson county; D. A. Bliss, Judge.

Action by Thomas Talley against the Houston & Texas Central Railroad Company for personal injuries. Plaintiff had judgment, and defendant appeals. Affirmed.

Head, Dillard & Muse, for appellant.

FINLEY, J.

Thomas Talley sued the railway company to recover damages for personal injuries alleged to have occurred while in the discharge of his duties as an employé, through the negligence of the defendant. The trial before a jury resulted in a verdict and judgment for plaintiff in the sum of $2,500, from which the railway company has appealed.

There are but two questions presented by assignments of error for determination by this court.

1. Did the trial court err in refusing to submit to the jury the issue of negligence on the part of fellow servants causing the injury? The evidence, in so far as it affects this question, is as follows: Talley was an employé of the defendant in the locomotive department, under A. R. Garbett, foreman of the roundhouse. Garbett had charge of all engines after they were brought into the yards, and turned over to him by the engineer and fireman. As soon as engines were brought in the yards, the engineer and fireman delivered them over to his department, and had nothing further to do with them until they were ready to go out upon the road again. Talley was a roundhouse employé, and his line of work was wiping engines, shoveling coal, and like duties. Garbett had authority to employ and discharge him, and to direct and superintend him in his work. Garbett ordered him to mount an engine in the yards, coming towards him, and get the coal board, shovel, and pick, and to coal up the engine. The coal was to be taken from a car standing upon a side track, and shoveled from the car to the engine. Talley put one foot upon the steps of the engine, and was just in the act of placing the other in the gangway of the engine, when his left shoulder came in contact with a coal car standing upon a side track, which broke his handhold, turned him around, and mashed him between the tender and coal car. The coal car had been placed and left standing too near the main track so there was not sufficient clearance for the safety of employés. The coal car had been placed in its position by the yardmaster, Tom Singer, or rather at his direction, by switchmen employed by and under him....