Manning v. Beaumont, S. L. & W. Ry. Co.

• Decision Date: 19 January 1916
• Docket Number: (No. 2428.)
• Citation: 181 S.W. 687
• Court: Texas Supreme Court
• Parties: MANNING v. BEAUMONT, S. L. & W. RY. CO.

181 S.W. 687

MANNING v. BEAUMONT, S. L. & W. RY. CO.

(No. 2428.)

Supreme Court of Texas.

January 19, 1916.

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

Action by Pat Manning against the Beaumont, Sour Lake & Western Railway Company. From the decision of the Court of Civil Appeals (146 S. W. 227), reversing a judgment in his favor in the court below, plaintiff brings error. Reversed and remanded.

O. T. Holt, John Lovejoy, and J. W. Parker, all of Houston, for plaintiff in error. Andrews, Ball & Streetman, of Houston, C. T. Duff, of Beaumont, and A. L. Jackson, of Houston, for defendant in error.

YANTIS, J.

The plaintiff in error, Pat Manning, recovered a judgment in the district court of Jefferson county against the Beaumont, Sour Lake & Western Railway Company for personal injuries received by him on the 26th day of July, 1907, while he was engaged in unloading tools from a construction train, the sudden jerking of which threw him off the flat car, where he was working, and under the train, which resulted in the wheels of the train running over and mashing his leg from his ankle to his knee. The honorable Court of Civil Appeals for the First District reversed and rendered the judgment in favor of the defendant in error, the Beaumont, Sour Lake & Western Railway Company, on the ground that the undisputed evidence showed that the train crew, whose negligence was complained of in causing the sudden jerks to the car, were the servants of the Kenefick-Hammond-Quigley Construction Company, an independent contractor engaged in the construction of an extension of the defendant railway company's railroad from Sour Lake to Houston, and not the servants of the said Beaumont, Sour Lake & Western Railway Company. 146 S. W. 227. A writ of error was granted by this court on said question.

Originally the suit was also against the Colorado Southern, New Orleans & Pacific Railway Company and the Kenefick-Hammond-Quigley Construction Company. The plaintiff alleged that he received his injuries from the joint negligence of all the defendants. Before the case went to trial, however, there was a dismissal by the plaintiff in error as to all the defendants except the present defendant in error, the Beaumont, Sour Lake & Western Railway Company.

At the time of the accident complained of the extension of the road had been practically completed, but it was not turned over to the defendant in error until three days later. At the time of the accident the plaintiff in error, Manning, was unloading tools from a flat car, preparatory to the construction of a switch.

The holding of the honorable Court of Civil Appeals that the undisputed evidence showed the train crew to be the servants of the construction company, and within their exclusive dominion, requires us, in reviewing the correctness of its decision, to search the record for, and give consideration to, the facts and circumstances in the record which are most favorable to the contention of the plaintiff in error on the question as to whether there is evidence of probative force tending to show that the train crew whose negligence was complained of were the agents and servants of the defendant in error, or the joint servants of it and the said Kenefick-Hammond-Quigley Construction Company. The jury has found favorably to the contention of the plaintiff in error upon this question. If there is any evidence to support their finding, the case should not have been reversed and rendered against the plaintiff in error. To determine this question it is not now essential or appropriate to present the evidence herein which is favorable to the opposite contention, the inquiry being directed entirely to a determination of whether there was any evidence to support the verdict of the jury.

It is contended by the plaintiff in error, Manning, that there is evidence of this nature to sustain the verdict, and in his petition for writ of error he quotes from the record the evidence upon which he relies to support the verdict of the jury, which is as follows:

"Plaintiff testified: `I am plaintiff in this case, and on July 26, 1907, I was working on construction work of the Beaumont, Sour Lake & Western Railroad Company, which runs east and west between Houston and Beaumont. I was foreman of the construction crew, and was occupying this position and doing this work from the 26th of March, 1907, until I got hurt, which was about four months. * * * Our work consisted in track construction, with headquarters at Huffman, which is in Jefferson county, Texas, about a mile west of the Trinity river. The station or siding at Martha, at which I got hurt, was east of Huffman and west of the San Jacinto river. I received an injury on July 26, 1907, between 1 and 2 o'clock p. m. On the morning of that date we started from Huffman, going east, with about 10 or 12 men, and I was foreman of them. * * * When we went out in the afternoon our train had eight cars loaded with ties and angle bars. The number of the engine drawing us was 302. The engineer was John McConnell; the fireman, H. Chapman; the conductor, C. S. Hoffhein. In leaving in the afternoon our destination was Martha. We were bringing in ties and angle bars, and were going to connect a switch with the main road at Martha. When we got to Martha the train was stopped, and there was a box car loaded with angle bars, and a flat car loaded with tools, and the caboose. The hindmost car was the caboose, and the one next in front of that was a flat car, and the one next in front of that, towards the engine, was a box car; then the other flat cars ahead were loaded with ties. * * * Two cars were cut off, and the balance of the cars loaded with ties were to go on east; but after they cut off the two cars and went ahead with the cars of ties they came back again; don't know whether they cut in two or not; anyway they came back. The flat car loaded with tools and the cars loaded with angle bars were the two rear cars, which were cut off. * * * The general foreman or superintendent at that time was Mr. R. L. Price. I was told to get the tools off the flat car and put in the switch. This order was given to me by Mr. R. L. Price. * * * I said, "All right," and got the crew that was with me, some down on the ground, and I was up on the car, and was stooping over picking up tools and handing them off, and as I was reaching over to pick up some tools those cars came back and hit once and knocked me back like, and I hadn't got straight up until it hit a second time so hard the blow knocked me off and over the end of the car, and I fell on the ground, and the car wheels run over my leg and mashed it about halfway up from my ankle to knee. * * * At the time I was hurt the main line ran all the way west of Beaumont as far as I went. Trains were running from here (Beaumont) to the San Jacinto river. * * * Trains had been running over the main line from 10 to 12 days before my injury — maybe more. The trains hauled lumber, shingles, stock, and such stuff as that. There was freight hauled through as property of the railroad company. I know that such freight was hauled, and I know of officers of the railroad company riding in cars over the railroad for some time before my injury. Mr. R. L. Price never had nothing to do with the engineer, fireman, and conductor of that train. He never gave them any orders, except to go and get material, or to take material to any particular point. That is all. When an order was made for material to be brought to a particular place to be unloaded, he told them to do it and they did it.'

"C. S. Hoffhein, a witness for plaintiff, testified:

"`I reside at Houston, and entered the service of the Beaumont, Sour Lake & Western Railway Company January 22, 1907. I started from Houston under orders contained in a letter in my possession. (Witness hands letter to plaintiff's counsel and identifies it.) * * * I applied for service in the railroad company to Mr. D. T. Forbes, who was then general superintendent, with his office here in Beaumont, I believe. * * * I had charge of a train from Sherman to Beaumont, but first brought it by way of Houston, then from Houston to Beaumont. I got here in the evening and stopped here until next morning; then I delivered those cars over the Beaumont & Sour Lake, and delivered them to the Trinity river, which is west of Beaumont. I delivered them to the foreman of the sand pit. After that I had instructions to return to Beaumont, and to pick up bad order cars along the line and bring them to Beaumont, from the river; and I did that. I don't remember how many cars I brought in, but somewhere between 12 or 15, something like that. They were different kinds of cars; some were construction company's; some were the Frisco cars; some foreign cars from other lines and were used for cattle. * * * We got to Beaumont about January 28, 1907, something like that, and brought the bad order cars into Beaumont the following day, January 29th. The Beaumont, Sour Lake & Western had some cars with its own initials and used some other cars of foreign roads. It had Frisco cars; it used quite a number of them. * * * I delivered those bad order cars, I think, to what they call the Santa Fé yards here at Beaumont; the Beaumont, Sour Lake & Western was using that yard. These bad order cars were put there for repairs, some of them; some of them they delivered to other lines. They did some of the repairing in their yards. The defendant railroad company had a yard at the roundhouse. The next morning, as stated, I went out on a passenger run; that was January 30, 1907. I went out under the orders of Mr. Forbes. I was on that run something like two weeks; I was a conductor on a passenger train hauling passengers and collecting fares. * * * After I got through with that service I was on the train that hauled material to the Trinity river. I did this under the orders of Mr. Forbes and acted as conductor. I could...