International & G. N. R. Co. v. Ryan

• Citation: 18 S.W. 219
• Parties: INTERNATIONAL & G. N. R. CO. v. RYAN.
• Decision Date: 15 December 1891
• Court: Supreme Court of Texas

18 S.W. 219

INTERNATIONAL & G. N. R. CO. v. RYAN.

Supreme Court of Texas.

December 15, 1891.

Commissioners' decision. Section A. Appeal from district court, Frio county; D. P. MARR, Judge.

Action by John Ryan against the International & Great Northern Railroad Company to recover damages for personal injuries. Plaintiff obtained judgment, and defendant appeals. Reversed.

Barnard & Green, for appellant.

HOBBY, P. J.

The appellee, who was plaintiff in the district court, brought this suit against the appellant to recover damages for injuries to his person, inflicted by reason of the negligence of appellant's servants. The original petition was filed on August 9, 1888. On the 26th October, 1888, the cause of action was more fully stated by amendment; a trial was had, resulting in a verdict and judgment for the plaintiff for the sum of $5,000. The defendant has appealed from this judgment, and assigned errors, the most important of which will be considered, without regard to the form in which they are presented. The question raised on this appeal will be better understood when considered in the light of the facts established by the plaintiff's evidence, from which we quote as follows: "On the night of the 16th of August I was sitting at the table in the sleeping-car used by the bridge gang No. 76, to which I belonged on that day, and for about thirteen or fourteen months prior thereto, off and on. I was in the employ of the International & Great Northern Railroad Company as a carpenter. I was employed by the day, at $2.25. Mr. Sumpf was the foreman of the gang. We had been doing some work at Tuna station, and were on our way to Palestine to do some work for the defendant. We had orders to stop at the San Antonio yard for the purpose of doing some work in raising one of the platforms of the railroad company. I had been down town during the evening of that day, and had returned to the bridge gang car, and was writing a letter at the table in the said car at about 9:30 on the night of the 16th August, 1887. Our cars were on the side track at San Antonio, to which place we had come, by direction of Mr. Bowers, at about 6 o'clock that evening. The switch engine was moving up and down the main track by the side of us. While sitting at the table the collision occurred. [The plaintiff here gave an account of the manner in which he received the injuries.] I went to the hospital the next morning. Stayed there 18 days, was discharged, and immediately rejoined the bridge gang No. 76, then working at Troupe. [The plaintiff here described the painful effects of his attempts to work as before, caused by the injuries.] Before I was injured, under my employment my hours of work were from seven until twelve, and from one till six. The day's work consisted of ten hours of labor. My time was my own after 6 o'clock P. M. every day, and I paid for my board at the rate of 66 2/3 cents per day. I was paid only for the number of days and hours that I had worked during the month. I had no contract to work any particular length of time for the railroad. My work for the day was done at the time I was struck. I could have quit the employment of the railroad at 6 o'clock that evening. The cars that struck ours on that night were box-cars, which we never did use or have any connection with; we used flat-cars in our work. Mr. Hume never had the control of our gang; they were under Mr. A. L. Bowers, who was the superintendent of bridges and building. Mr. Hume had sometimes furnished us with cars by order of Mr. A. L. Bowers, but Mr. Hume and Mr. Bowers were independent of each other in the control of their departments. Mr. Hume was general superintendent of transportation. The man in charge of the cars that collided with the cars on which I was, belonged to Mr. Hume's department, and we to the department under Mr. Bowers. There were no duties in common between the employes of the two departments. Their work was separate and apart." On cross-examination he testified: "At the time I was injured in the International yard I had been employed off and on for about thirteen or fourteen months by the company, and had been with Mr. Sumpf's bridge gang during the time that I was so employed. We expected to go to work in the International & Great Northern Railroad Company's yard the next morning, raising a platform. It was the duty of the bridge gang under Mr. A. L. Bowers, who was superintendent of this department of the road, to move up and down the road, repairing bridges, depots, platforms, turn-tables, etc., whenever it was necessary. As long as I belonged to the bridge gang I slept and lived in the cars provided and furnished by the railroad company for our use and occupation. This was my only home. I was entitled to sleep in car at the end of each day's work. When I joined the bridge gang I knew I would have to sleep in these cars, and to await the orders of Mr. A. L. Bowers, the superintendent. The orders were given by Mr. Bowers to Mr. Sumpf. I expected to go to work the next day as usual with the gang, and notwithstanding the fact that I was hurt on the next morning, to-wit, August 17, 1887, I went to the place where the gang was at work for the purpose of joining them in their work. * * * My day's work had been done on August 16th when I was hurt, but I had not quit the employment of the railroad company, nor had they discharged me from their service, but my time was my own after 6 o'clock that evening, and was my own when I was struck. When I was injured my time was my own, and I was attending to my own affairs, engaged in writing a letter. I was not then working for the company. I considered my time ended that evening at 6 o'clock. I was not bound to work longer, or the company to keep me." The plaintiff testified, further, that the men who caused the accident were employed in the transportation department by Mr. Hume, the master of transportation, but were in the employment of the same company, and paid monthly; they were paid only in that manner. He also testified that when he entered into the company's service he knew he would be frequently placed on the side track at different stations. Had been so placed many times prior to this accident, and other cars had collided with the car which he was in previously, but never so hard as on this occasion. He knew there was a possibility of such an accident, but knew also...