Jackson v. Galveston, H. & S. A. Ry. Co.

• Decision Date: 04 November 1896
• Citation: 37 S.W. 786
• Parties: JACKSON v. GALVESTON, H. & S. A. RY. CO.
• Court: Texas Court of Appeals

37 S.W. 786

JACKSON v. GALVESTON, H. & S. A. RY. CO.

Court of Civil Appeals of Texas.

November 4, 1896.

Appeal from district court, Bexar county; S. G. Newton, Judge.

Action by Solomon Jackson against the Galveston, Harrisburg & San Antonio Railway Company for personal injuries. From a judgment in favor of defendant, plaintiff appeals. Reversed.

J. A. Buckler and T. M. Watlington, for appellant. Upson & Bergstrom, for appellee.

FLY, J.

Appellant sued appellee to recover $5,000 damages for personal injuries sustained by him while in the employ of appellee. A general demurrer was sustained to the petition, and, appellant declining to amend, judgment was rendered for appellee. The petition stated that on the 8th of June, 1895, appellant was engaged, with others, in repairing appellee's track in Guadalupe county, and was under the direction and control of Foreman John Daly; that, while so engaged, a freight train approached, and appellant, to secure his safety, assumed a position about six feet from the track; that one Thornton McCormick, a fireman on the locomotive, about the time the train was passing appellant, recklessly, carelessly, negligently, and without any excuse, jumped from the engine while it was in rapid motion, and jumped against appellant, knocking him down, and breaking his leg. It was also alleged that McCormick saw appellant, or could have seen him by the exercise of reasonable care, and that the act of McCormick was committed while engaged in the service he was employed by appellee to perform, and appellee was liable for the injury he inflicted. In the second count of the petition it was alleged that Foreman Daly, knowing that a freight train was soon expected to arrive, sent a flagman to stop it before it reached that part of the track that was being repaired; that the signal was given, but was carelessly disregarded by the engineer, and the train did not stop, or lessen its speed, until it reached the spot where appellant was standing, but passed him at a high rate of speed; and that "Fireman McCormick had reasonable grounds for believing, and did actually believe, that said track was not in condition for the train to pass over it, and that it was out of repair, and that some of the rails were out of place, and off the track, and actually believed, and had reasonable grounds for believing, that it would be dangerous for him to remain upon the engine any longer, and that the only way for him to escape the danger he regarded as imminent was to immediately jump from the train, which he did, just as said train was passing where the plaintiff was standing, and in doing so jumped upon and against the plaintiff, as stated in the first count of this amended petition, and injured him as therein stated, from which injury he suffered the damages therein stated; that on account of the negligence of the engineer of said train, in his failure to heed the said signal, and to stop said train, and on account of the signaling of the same by the said section boss, and the consequent frightening of the said fireman, the plaintiff was injured by the negligence of the defendant, for which he prays judgment. He charges that, while he was at work at the time and place aforesaid for the defendant, and under the control of the said Daily, he, said Daily, knowing of the approach of said train, sent forward an employé of the defendant, a flagman, to flag said train, and have it stop before it reached the place where said repairs were being made, and before it reached the place where plaintiff was standing; that said flagman did go and flag said train in ample time for it to have stopped before it reached the place where the plaintiff was injured, and the engineer and others in charge of said train did make reasonable effort to stop said train, but were not able to do so on account of there not being sufficient brakes upon it to stop it with reasonable promptness; that it was a large and long train, composed of nineteen freight cars, and was running upon a down grade, and that there were brakes upon only six of the cars, and that this was not sufficient to the proper management and control of such trains, going at the rate of speed at which the said train was moving, and at which it generally moved; that the reasonable and customary number of brakes for such a train is one to each car, and that they generally are air brakes, and to insure a reasonable degree of safety to the employés of the defendant and others there should be upon each car an air brake, which was not upon any of the cars of this train, except six of them; that, on account of the negligence of the defendant in failing to furnish and provide said train with the requisite brakes, as stated above, the said engineer and the others, brakemen and others, in charge of said train, were unable to stop it, or to lessen its speed, until it had come up to where the plaintiff was standing, and the said fireman, then reasonably apprehending danger to himself, on account of his belief that said track was out of repair, so as not to be in condition for the passage of said train over it, in order to escape such supposed danger, jumped from said train against the plaintiff, and injured him as aforesaid, and to his damage as aforesaid, for all of which the defendant is liable to him."

To place the responsibility for the wrongful acts of a servant upon his master, it must be shown that the wrongful act was so connected with and incident to the service in which the servant was engaged that it can be said to have been done in the line of duty and in the furtherance of the master's business. The doctrine of respondeat superior must, in order to be reasonably sustained, be based on the doctrine that what a person does through another he does himself. To invoke the aid of this doctrine the act of the servant must have been one that had the authority of the master, express or implied, for its performance. If the act is one incident to and within the scope of the servant's employment, the law will hold the master responsible for the consequences of it; but it does not follow that every act done by the servant while performing the service of his master is chargeable to the master. The act must be within the scope of his employment. Wood, Mast. & Serv. §§ 277-280. If, as alleged in the first count of the petition, appellant was injured through the negligence of the fireman in jumping on him, that negligence cannot be imputed to the master, for there is nothing in the pleading that indicates that the act of the fireman was within the scope of his employment. On the other hand, the petition sets at rest any surmises on this subject by stating what were the duties of the fireman on the engine. By no process of reasoning can the deduction be drawn that jumping off the locomotive, while it was moving very rapidly, was incident to the duties of a railway fireman. There was, therefore, no cause of action stated in the first count of the petition. To fix the liability under the allegations of the second count, they must be such that, if proven, would show the negligence of appellee as alleged, and that such negligence was the proximate cause of the injury. Where the damage directly follows the wrong, and there is no time or place for the operation of another agency, no difficulty, of course, is experienced in arriving at a conclusion as to the proximate cause; but where there are several causes contributing to the injury, the question of locating the proximate cause becomes one of much difficulty. The rule as to proximate cause, stated by Addison, and adopted by Cooley, is as follows: "If the wrong and the resulting damage are not known by common experience to be naturally and usually in sequence, and the damage does not, according to the ordinary course of events, follow from the wrong, the wrong and the damage are not sufficiently subjoined or concatenated as cause and effect to support an action." Add. Torts, p. 6; Cooley, Torts, 73, 74. From this rule it will be seen that it is not absolutely essential that the proximate cause should be the one nearest in point of time to the injury. It is not every intervening cause between the original cause and the injury that will be the proximate cause. There may be intervening causes that are mere incidents to the original cause, which were put in motion by it, and which are but a continuance of it, and which are traceable back to the force that set them in motion. Such intervening causes do not disconnect the primal cause from the disaster, and are not taken...