Houston & Tex. Cent. R'Y Co. v. O'hare

• Decision Date: 10 November 1885
• Docket Number: Case No. 1916.
• Citation: 64 Tex. 600
• Court: Texas Supreme Court
• Parties: HOUSTON & TEXAS CENTRAL R'Y CO. v. JERRY O'HARE.

64 Tex. 600

HOUSTON & TEXAS CENTRAL R'Y CO.

v.JERRY O'HARE.

Case No. 1916.

Supreme Court of Texas.

Nov. 10, 1885.

APPEAL from Navarro. Tried below before the Hon. L. D. Bradley.

Jerry O'Hare, the appellee, was an employee at the round house of the Houston & Texas Central Railway Company in Corsicana. His duties were to wipe engines, carry coal and sand, etc., from the round house to the machine-shop, and to do anything and everything necessary to be done around and about the round house, including the coupling of cars, when called on by the foreman. On the 18th September, 1874, a freight engine, No. 63, was brought to the round house for the purpose of turning it on the turn-table and sending it back south to the shops of the company at Houston, to be repaired, one of the eccentrics being broken. When the engine was brought in, P. H. Cullen, the foreman at the round house, took charge of it, turned it on the table, and, preparatory to placing it on the main track for the purpose of sending it to Houston, was switching and coupling cars, when O'Hare, who was called on by the foreman to make a coupling, received an injury, of which he complains in this suit. He filed his original petition on the 5th February, 1875. A trial was had at the November term, 1875, resulting in a verdict and judgment in his favor, from which the defendants appealed to the supreme court. At the Austin term, 1882, the cause was reversed and remanded.

Another trial in the district court was had at the June term, 1885, resulting in a verdict and judgment in favor of plaintiff for $1,566.66.

Frost, Barry & Lee, for appellant.

Croft & Blanding, for appellee, cited: Shear. & Red. on Neg., secs. 89, 90; sec. 102, and cases cited in notes 5 and 6; Laning v. N. Y. Cent. R. Co., 49 N. Y., 521; Tex. L. Rev., June 2, 1885, p. 325; Mo. Pac. R. R. v. Watts, Tex. L. Rev., October 20, 1885, p. 647; Lalor v. Chicago, B. & Q. R. R. Co., 4 Am. Rep., 616;Baxter v. Roberts, 13 Am. Rep., 160;Perry v. Marsh, 25 Ala., 659, and other cases cited in point in notes to Baxter v. Roberts, 13 Am. Rep., 160; Shear. & Red. on Neg., secs. 92, 93, and cases cited; Chicago & N. W. R. R. v. Jackson, 8 Am. Rep., 661; Brothers v. Carter, 14 Am. Rep., 624; Fort v. Union P. R'y Co., 17 Wall., 553.

STAYTON, ASSOCIATE JUSTICE.

The sole ground on which the plaintiff sought relief was, that he was injured by the negligence of the railway company in using a crippled engine.

The charge clearly informed the jury what the issue to be tried was, and, to enable the jury properly to determine whether negligence on the part of the defendant existed, gave the charge which is complained of in the fourth assignment.

The assignment is:

“The court erred in the fourth paragraph of the charge, instructingthe jury that the defendant company has no means of acting except through its agents or officers, and that the act or negligence of an agent or officer is the act or negligence of the company itself; because there was no such issue in the cause, and the charge under the facts of this case was calculated to impress the jury that the engineer in charge of the engine was an officer of the company as to the plaintiff, and that for any injury to the plaintiff through his (the engineer's) negligence, the defendant would be liable.”

To determine whether a charge be correct it is necessary to look to the case made by the pleadings and evidence. If a case be made in which the negligence of an agent or officer is the negligence of the principal, which will give an action to an employee for an injury resulting therefrom, then it is proper that a charge should so inform the jury.

It is well settled that it is the duty of a railway company to use great care in furnishing to its employees safe machinery to be used in the prosecution of its business, and that the persons to whom this duty is confided by the company must be regarded as its representatives for this purpose, for whose negligence, in this respect, if injury results therefrom, the company will be liable, even to an employee who is free from contributory negligence.

The negligence alleged in this case consisting in the use of a defective engine, and in the connection in which it was used, the court did not err in instructing the jury that “the defendant, as a railroad company, has no means of acting except through its agents; and the act or negligence of an agent or officer of the company is, in law, the act or negligence of the company itself.”

If the issue had not been as to the negligent use of a defective thing, but had been as to the manner in which the...