McCracken v. Lantry-Sharpe Contracting Co.

• Decision Date: 13 March 1907
• Parties: McCRACKEN v. LANTRY-SHARPE CONTRACTING CO.
• Court: Texas Court of Appeals

101 S.W. 520

McCRACKEN v. LANTRY-SHARPE CONTRACTING CO.

Court of Civil Appeals of Texas.

March 13, 1907.

On Rehearing April 17, 1907.

Appeal from District Court, Bell County; John M. Furman, Judge.

Action by W. E. McCracken against the Lantry-Sharpe Contracting Company. From a judgment for defendant, plaintiff appeals. Reversed and remanded.

J. B. McMahon, for appellant. Harry P. Lawther and A. M. Monteith, for appellee.

EIDSON, J.

This action was brought in the court below by appellant against appellee to recover damages for personal injuries sustained by him while in the employ of appellee, through its alleged negligence. The trial before the court and a jury resulted in a verdict and judgment in favor of appellee, from which judgment appellant has perfected an appeal to this court.

Appellant's first assignment of error complains of the action of the court below in giving to the jury the following instruction: "Now, if you find from the evidence that John Bruce was the carpenter in charge of the construction of said rock-crusher plant, and had authority to direct the details of said work and the workmen engaged upon the same, but had no authority to hire and discharge said workmen, then the said Bruce would be under the law a fellow servant of plaintiff, and defendant would not be liable for his negligence, unless the same concurred with negligence of the master, and thus assisted in the infliction of the injury." Appellant's contention is that this instruction ignores the principle that where a master places a servant in charge of certain work, and confers upon him the authority to control and direct other servants, who are placed under him with instructions to obey his orders and directions in the performance of such work, such superior servant, in giving orders and directions to the servants under him, represents the master, and negligence of such servant while in the performance of such duties would be the negligence of the master; and made the sole and exclusive test of whether Bruce was the representative of appellee his authority or want of authority to hire and discharge hands. There is testimony in the record tending to show that Bruce was placed by appellee in charge of the work which was being performed at the time appellant received the injuries upon which this suit is based, and that he was given by appellee authority to control and direct the hands placed under him to assist in the performance of the work, and such hands were instructed to obey his orders and directions; that appellant was one of the hands placed by appellee under the said Bruce, and he received his injuries while in the performance of his duties and obeying the orders of the said Bruce; and that the proximate cause of the said injuries was an order given by the said Bruce in the course of said work, and the giving of such order was negligence. We think this testimony tends to show that, at the time appellant sustained his injuries, Bruce had authority to perform, and was then in the actual performance of, the duties of appellee (the master), and that his negligence would be the negligence of appellee. Abilene Cotton Oil Co. v. Anderson (Tex. Civ. App.) 91 S. W. 607; Bering Manufacturing Co. v. Femelat, 79 S. W. 869, 35 Tex. Civ. App. 36; Waxahachie Cotton Oil Co. v. McLain, 66 S. W. 226, 27 Tex. Civ. App. 334; M. & P. Oil Co. v. Burns (Tex. Civ....