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

• Citation: 14 S.W. 171
• Court: Supreme Court of Texas
• Decision Date: 06 June 1890
• Parties: INTERNATIONAL & G. N. R. CO. v. PRINCE.

14 S.W. 171

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

Supreme Court of Texas.

June 6, 1890.

Appeal from district court, Hays county.

Action by T. M. Prince against the International & Great Northern Railroad Company for personal injuries. Plaintiff obtained judgment. Defendant appeals.

W. O. Hutchison and R. B. Rose, for appellant. O. T. Brown and Denman & Franklin, for appellee.

STAYTON, C. J.

This cause was before this court at a former term. 64 Tex. 144. The holding there was that the petition stated a cause of action; and, although there are other questions now presented, the main inquiry now is whether the evidence supports the averments of the petition. When injured, appellee was riding on a hand-car, which the evidence shows was against the rules of the company; such cars being intended only for the transportation of employes, tools, and such other things as were necessary to be used on the road. The petition alleged, in effect, that the company was not accustomed to transport passengers on its hand-cars, but that, on the occasion when the appellee was injured, it did invite him and others to take passage on its handcar, for the purpose of reaching a place on the road where a dead person had been found, to which place the persons so received on the car were going to hold an inquest, which the company, for its own vindication, desired should be held. Appellee further alleged that he went on the hand-car at the invitation of the company; that the car was operated and managed by appellant's servants, through whose negligence he was injured. The evidence shows that it was a violation of the printed rules of the company to transport others than employes on hand-cars, but does not show that appellee was aware of that rule. On the morning of the day on which the accident occurred, one Hume, who was train-master on that part of appellant's road, sent a telegram to the section foreman of that section, directing him to take the coroner and his jury to the place where the dead body was found; and there can be no doubt but that he expected this to be done on hand-cars, of which the section foreman had the immediate control. The testimony of Hume is to the effect that he had no right or power, derived from appellant, to direct the use of its hand-cars for the purpose for which he did direct them to be used. His evidence, as well as that of the road-master, tends to show that he had general control of all trains engaged in transportation of passengers or freight, but that he had no right to control hand-cars, which were for the use of employes of the company only, and under the control of the road-master. A witness, who seems to have been in the employment of appellant at the time appellee was injured, stated that he was "familiar with the duties of a railroad train-master. He has control of all trains on his division. He regulates everything that goes on the track on his division. His position is separate to that of train dispatcher. He has control of all trainmen on his division. In the absence of a division superintendent, he has the authority of such superintendent, and has control of everything on his division. I do not think there was any division superintendent on the Laredo & Taylor Division when Mr. Prince was hurt by the handcar." Another employe stated that "Hume, as said train-master, had exclusive control of his section as to other employes on the road, and the general management of the road as to said subdivision, to-wit, from Taylor to Laredo. All employes were subject to his orders on said section." Another employe, after stating that Hume had directed him to have the inquest held, and to use hand-cars in transporting the coroner and jury, said: "Hume was train-master of this division, and as such was my superior, and directed me to do what...