M. P. R'Y Co. v. Watts

• Decision Date: 20 March 1885
• Docket Number: Case No. 1954.
• Citation: 63 Tex. 549
• Parties: THE M. P. R'Y CO. ET AL. v. R. P. WATTS.
• Court: Texas Supreme Court

63 Tex. 549

THE M. P. R'Y CO. ET AL.

v.R. P. WATTS.

Case No. 1954.

Supreme Court of Texas.

Mar. 20, 1885.

APPEAL from Anderson. Tried below before the Hon. Peyton F. Edwards.

Suit by R. P. Watts against the Missouri Pacific Railway Company and the International & Great Northern Railroad Company, for damages for personal injuries inflicted on him while he was in the employment as a servant of the Missouri Pacific Railway Company, lessee of the said International & Great Northern Railway Company. He claimed that he was damaged in the sum of $6,000. The appellants (as defendants below) answered:

1st. That they were “not guilty.”

2d. That if any injuries were inflicted it was done by a fellow-servant in the common employment and that the risk was assumed by appellee. 3d. That, if any injury was inflicted, appellee contributed thereto by his negligence.

Verdict and judgment for Watts for $2,500.

The points presented are sufficiently indicated. The evidence shows that appellee sought and procured employment as car repairer at Palestine; he was employed by Shipman, who was at the head of the repair department, and who directed appellee to go to Burk, a foreman of repairs, for directions as to the work. Burk placed him to work between two freight cars standing on one of the repair switches, sawing out the end of one of the cars, while he (Burk) went to the shop for material to repair the car. While absent an engine was backed in on the switch with a broken car, which struck one of the cars standing on the track, and that forced the cars together and crushed appellee, inflicting upon him serious injury. Before the engine was backed in with the broken car, the foreman of the yard went down the switch and called out to the workmen to look out for the engine; that this was the rule or regulation of the company in giving the notice.

Appellee, as he was sawing, did not hear the warning, and his position was such that he could not see the approaching engine and car.

The evidence shows that Bradford, the yardmaster (whose duty it was to warn Watts of danger when bringing a car on the track, and who gave the warning), and the engineer and fireman were employed and discharged by the train dispatcher, manager of the operating department; and the others, including Burk, head carpenter, and laborers were hired and discharged by Shipman, the manager of the repair department. The cars were inspected--moved to the tracks for repair, repaired and carried away again, in the following manner: When a train of cars comes in the yard and stops, two men, called inspectors, examine each car. If they find they are out of repair they mark on it “out of order.” The yardmaster directs the engineer who operates only in the yards to remove it to the repair tracks. The engineer hauls it to the end of the repair tracks. The yardmaster designates the track it is to be moved on. Before the engine moves it on the track, he (yardmaster) walks down the entire track and notifies any in danger, and at the end of the cars next to the coming engine, halloos, ““Look out!” and then the engineer rings the bell and slowly pushes the car ordinarily to within twenty or twenty-five inches of the standing car nearest to him. It appears that Bradford did not see Watts on account of the noise made by his work, and Watts did not hear him; and the engineer did not stop the moving car, whereby he was injured.

The court, among other things, also charged: “When a servant is placed by his superior in a position which is apparently safe, and may become unsafe by some means of which the servant is not aware, or which he cannot ascertain by the use of ordinary diligence, it is the duty of the superior to inform the servant of such danger, and if the servant, while executing the command given him in a proper and careful manner, is injured by an act of which he had no notice, the master is liable for such injury.”

The court also refused to give the following charge, viz.: “If at the time plaintiff Watts accepted service from defendants as a repair carpenter on the tracks, by the usage and custom of the defendants, warning of danger from an approaching engine was given by ringing the engine bell, that he, Watts, engaged in the service subject to the said usage and custom, and cannot recover on the ground that he did not have other or different notice of danger.”

John Young Gooch, for appellant, cited: Robinson v. H. & T. C. R'y Co., 46 Tex., 540; Wall v. Tex. & Pac. R'y Co., Tex. L. Rev., vol. 4, No. 3; G., H. & S. A. R'y Co. v. Drew, 59 Tex., 11; Tex. Mex. R'y Co. v. Whitmore, 58 Tex., 287; Railroad Co. v. Myers, 55 Tex., 110;Price v. H. D. Nav. Co., 46 Tex., 535; Pierce on Railroads, pp. 359, 364; Wood on Master and Servant, secs. 326, 425, p. 809; Farwell v. B. & W. R. R. Co., 4 Metc. (Mass.), 49; Railroad Co. v. Oram, 49 Tex., 341;Mo. Pac. R'y Co. v. Lyde, 57 Tex., 509; Pierce on Railroads, 370; Watson v. R. R. Co., 58 Tex., 438;Flanagan v. C. & N. W. R'y Co., 45 Wis., 98.

W. Q. & Frank Reeves, for appellee, cited: Howard Oil Co. v. Farmer, 56 Tex., 301; H. & T. C. R'y Co. v. Marcelles, 59 Tex., 334; Am. L. Reg., vol. 14 (N. S.), p. 725; Wall v. T. & P. R'y Co., Tex. L. Rev., July 22, 1884; Railway Co. v. Fort, 17 Wall., 553; Law of Master and Servant (Wood), secs. 353, 439, 415, 349 and notes 354, 355, 439; Pierce on Railroads, p. 376; Thompson on Neg., vol. 2, p. 979, sec. 9; Law of Negligence (Wharton), sec. 206; Wait's Actions and Defenses, vol. 4, p. 417; Law of Damages (Field's), sec. 185; Moak's Underhill on Torts, p. 56, rule 15, notes 3 and 4.

WATTS, J. COM. APP.

Undoubtedly the charge of the court upon the issue as to fellow-servants is not in accord with the generally received doctrine in this...