Houston, E. & W. T. Ry. Co. v. Jackman

• Decision Date: 21 November 1919
• Docket Number: (No. 498.)
• Parties: HOUSTON, E. & W. T. RY. CO. v. JACKMAN.
• Court: Texas Court of Appeals

217 S.W. 410

HOUSTON, E. & W. T. RY. CO. v. JACKMAN.

(No. 498.)

Court of Civil Appeals of Texas. Beaumont.

November 21, 1919.

Rehearing Denied January 7, 1920.

Appeal from District Court, Liberty County; J. Llewellyn, Judge.

Suit by M. Jackman against the Houston, East & West Texas Railway Company and another. From judgment for plaintiff against the first-named defendant, it appeals. Affirmed.

E. B. Pickett, Jr., C. H. Cain, and P. C. Matthews, all of Liberty, for appellant.

McMeans, Garrison & Pollard and Stevens & Stevens, all of Houston, and F. J. & C. T. Duff, of Beaumont, for appellee.

HIGHTOWER, C. J.

This was a suit by appellee, M. Jackman, against the Houston, East & West Texas Railway Company and the Gulf, Colorado & Santa Fé Railroad Company, filed in the district court of Liberty county, in which the plaintiff sought to recover damages in consequence of personal injuries alleged to have been sustained by him about the 21st of December, 1916. The substance of plaintiff's petition may be stated as follows:

He alleged that on the date of his injuries he was the joint agent of both defendants at a point where the roads of the two defendants intersect and cross each other, and known as Cleveland Junction, in Liberty county; that on said date the defendant Houston, East & West Texas Railway Company transported certain freight over its line, which was to be delivered to the defendant Gulf, Colorado & Santa Fé Railroad Company at said junction, and from there to be transported by the latter defendant to a point on its road; that this freight consisted, among other things, of eight bundles or packs of iron, said bundles or packs being each about five feet square, and each weighing about 500 pounds; that as such joint agent of said defendants at said station it was the duty of plaintiff to check said freight as it was being delivered from the Houston, East & West Texas Railway Company to the Gulf, Colorado & Santa Fé Railroad Company, which freight was in a box car of the Houston, East & West Texas Railway Company, and that for the purpose of making such check plaintiff, in the discharge of his duty, went into said box car and entered upon the performance of his duty as such agent in checking this iron; that after two bundles or packs of this iron had been taken out of the box car there remained six other bundles or packs of the iron, and that these packs or bundles were set up or stood up by the side of the car and inside thereof by the employés of the Houston, East & West Texas Railway Company, and that said bundles of iron, as they thus were placed, were leaning against the side of the car in an almost perpendicular position; that one George Massey, a negro brakeman in the employ of the Houston, East & West Texas Railway Company, was holding these six bundles of iron, or rather steadying them as they stood against the side of the car, and that while plaintiff was in the discharge of his duty there in checking and assisting in the delivery of said iron from the Houston, East & West Texas Railway Company to the Gulf, Colorado & Santa Fé Railroad Company, said brakeman, George Massey, without warning or notice to plaintiff, suddenly and negligently let loose or released his hold on said bundles of iron, and thereby let or caused said six bundles of iron to fall upon and against the plaintiff, seriously injuring him, the extent of such injuries being specifically stated.

The defendants filed a joint answer, consisting of a general demurrer, general denial, a plea of contributory negligence, and further specially pleaded that the plaintiff, at the time he was injured, was not in the discharge of any duty owed by him to either of said defendants, but was a mere volunteer at the time, and that neither of said defendants owed him any duty at said time, other than not to willfully or wantonly injure him; the contention of the defendants in this connection being that at the time plaintiff was injured he was assisting in the physical effort of unloading this iron from the box car, or at least was holding or assisting the employés of the Houston, East & West Texas Railway Company to hold said iron against the walls of said car at the time he was injured, and that it was no part of his duty, as agent for either of said defendants at said junction, to so participate or assist in the handling or delivery of freight from one of said companies to the other, but that his sole duty, as agent for the Gulf, Colorado & Santa Fé Railroad Company, was to check the iron that was being delivered to the Gulf, Colorado & Santa Fé Railroad Company from the Houston, East & West Texas Railway Company, which duties did not require plaintiff to assist in unloading or to do any physical act in connection with such checking. The Houston, East & West Texas Railway Company further alleged specifically that plaintiff was not the agent of that company for any purpose other than to sell tickets over its road, and that as to that company plaintiff was a mere volunteer in anything he did on the occasion in question with reference to such freight.

At the conclusion of the evidence the case was submitted to a jury upon the following special issues contained in the court's main charge:

Issue No. 1: "Did Brakeman George suddenly and without warning let loose the sheet of iron in said car, thereby causing the same to topple over and to fall to, upon, and against plaintiff, and throw him against the floor of said box car?"

To this issue the jury answered "Yes."

Issue No. 2: "Was such act, if any, on the part of Brakeman George, negligence on his part, under the definition thereof hereinabove given?"

To this issue the jury answered "Yes."

Issue No. 3: "Was such negligence, if any, on the part of Brakeman George, the proximate cause of plaintiff's injuries, if any?"

To this issue the jury answered "Yes."

Issue No. 4: "What amount of money paid now will fairly and justly compensate plaintiff for such damages, if any, as were the direct and proximate result of said negligence and injuries, if any, on the part of said Brakeman George?"

To this issue the jury answered "$12,500."

In addition to the above special issues contained in the court's main charge, the defendants jointly requested, and the court submitted upon their request, the following special issue:

Special Issue No. 9 (requested by defendants): "Was or was not the plaintiff, M. Jackman, at the time of the alleged injury, the joint agent of the Houston, East & West Texas Railway Company and the Gulf, Colorado & Santa Fé Railroad Company for the purpose of handling the freight while being unloaded from the cars of the Houston, East & West Texas Railway Company?"

To this issue, so requested by defendants, the jury answered "Yes."

Upon the return of the verdict by the jury, judgment was entered in favor of the plaintiff, Jackman, against the defendant Houston, East & West Texas Railway Company for the sum of $12,500, and judgment was entered in favor of the defendant Gulf, Colorado & Santa Fé Railroad Company, and plaintiff was not allowed to recover anything against that defendant.

From the judgment so entered, the Houston, East & West Texas Railway Company has appealed to this court, assigning a number of errors, and the plaintiff, Jackman, has also assigned error to the action of the trial court in refusing to also enter judgment in his favor against the Gulf, Colorado & Santa Fé Railroad Company. For convenience, the Houston, East & West Texas Railway Company will hereinafter be referred to as appellant, and the plaintiff, Jackman, as appellee, and the defendant Gulf, Colorado & Santa Fé Railroad Company will be referred to as such.

The first assignment of error found in appellant's brief is as follows:

"The defendant is entitled to a new trial, for the reason that the verdict of the jury is contrary to the law and the evidence, in that the undisputed evidence shows: (a) That the plaintiff was not the agent or representative of the defendant Houston, East & West Texas Railway Company in the performance of any service in handling freight while same was being loaded or unloaded into the cars of the Houston, East & West Texas, but was the agent of the Gulf, Colorado & Santa Fé Railway Company; (b) that his duties as agent for the Gulf, Colorado & Santa Fé Railway Company and as ticket agent for the Houston, East & West Texas Railway Company did not require him to go into the car and assist in unloading and loading freight; (c) that in assisting the employés of the Houston, East & West Texas Railway Company in unloading freight he was a mere volunteer; that his duties did not require him to do so; that he was not performing any service that he was employed to perform; that he was not called upon by any agents or employés of the defendant to perform said service, nor was there any necessity for his assisting to unload said freight by reason of insufficient crews of help; but his act in helping, his act in attempting to hold said steel or iron against the walls of said car, was his own volunteer act, and being a mere volunteer, and assisting without the request of the Houston, East & West Texas, or any of its agents or representatives, and not being requested to do so in the performance of any duty that he owed to the Houston, East & West Texas, the defendant company was not liable for any negligent act of its servants in unloading the freight, except to avoid willfully or wantonly injuring the plaintiff, he being a mere volunteer, which would preclude a recovery."

This assignment is submitted as a proposition within itself. In addition appellant makes the further propositions under this assignment:

(1) "A person who works for another of his own volition, without the knowledge or request of any one in authority, cannot thereby establish the relation of employer and employé, so as to base a claim for damages on the duty that an employer owes to an employé."

(2) "A...