Lovett v. Gulf, C. & S. F. Ry. Co.

• Decision Date: 24 March 1904
• Citation: 79 S.W. 514
• Parties: LOVETT v. GULF, C. & S. F. RY. CO.
• Court: Texas Supreme Court

79 S.W. 514

LOVETT v. GULF, C. & S. F. RY. CO.

Supreme Court of Texas.

March 24, 1904.

Error to Court of Civil Appeals of Fourth Supreme Judicial District.

Action by S. A. Lovett against the Gulf, Colorado & Santa Fé Railway Company. Judgment in favor of plaintiff was reversed by the Court of Civil Appeals (74 S. W. 570), and plaintiff brings error. Affirmed.

W. W. Wilkins and Randell & Wood, for plaintiff in error. J. W. Terry and Chas. K. Lee, for defendant in error.

WILLIAMS, J.

The Court of Civil Appeals reversed a judgment of the district court, recovered by plaintiff in error against the defendant in error for damages for personal injuries, and rendered judgment in favor of the defendant. The court based its action upon two propositions, which were: (1) There was no evidence of negligence on the part of the defendant; and (2) that the evidence conclusively established contributory negligence on the part of plaintiff.

Upon a close examination of the evidence, this court is of the opinion that the first reason, if not the second, is sound. It is important to determine the legal relation in which plaintiff and defendant stood to each other when the former received his injuries. Plaintiff was an employé of Ricker, Lee & Co. and not of the railroad company. Nor was he, when hurt, a passenger. The railroad company owned a gravel pit situated a short distance from its road, from which it obtained gravel used in improving its tracks, etc. From its main line to this pit was a spur track used by defendant, not for carrying freight or passengers, but solely for the transportation of the gravel for its own use. Upon this spur it operated a switch engine to haul empty flat cars to the pit and loaded ones from the pit to a siding upon its main line. Ricker, Lee & Co. were independent contractors who had engaged with the defendant to get gravel out of the pit and load it upon the cars, and for this purpose had employed plaintiff and other hands. The duty of the servants of the railroad company was therefore to carry empty cars to the proper points for loading and loaded ones to the siding mentioned, while that of the servants of Ricker, Lee & Co. was to load the cars with gravel. The last-mentioned servants boarded at the station house upon defendant's main line, about three-fourths of a mile from the pit. The contract between the railroad company and Ricker, Lee & Co. did not obligate the former to convey the employés of the latter to and from this boarding place, or to perform for them any service which affects the questions before us. These employés had for a long time been in the habit of riding on the engine and cars back and forth from the pit to the section house, and we shall assume that the evidence justifies the conclusion that this was done with the permission of authorized agents of the railroad company. This is the strongest statement of the right of the men to so ride that can be made consistent with the evidence. Sometimes the trip was made with engine alone, while at others it had attached to it cars, loaded or empty. The men sometimes walked, but generally rode, to and from their boarding house, selecting for themselves the parts of the engine or train which they would occupy, except that the engineer did not allow them to ride in the cab. The evidence indicates that they stood upon the footboard of the engine, as well as at any other place they chose. On the day of plaintiff's injury he and the other hands of Ricker, Lee & Co. were going from the pit to their dinner upon the train,...