Mexican Nat. R. Co. v. Mussette

• Decision Date: 06 December 1893
• Citation: 24 S.W. 520
• Parties: MEXICAN NAT. R. CO. v. MUSSETTE.
• Court: Texas Court of Appeals

24 S.W. 520

MEXICAN NAT. R. CO. v. MUSSETTE.

Court of Civil Appeals of Texas.

December 6, 1893.

Appeal from district court, Webb county; A. L. McLane, Judge.

Action by James Mussette against the Mexican National Railroad Company for personal injuries. Judgment for plaintiff. Defendant appeals. Affirmed.

Nicholson, Dodd & Mullally, for appellant. W. Showalter and Herbert W. Wolcott, for appellee.

Conclusions of Fact.

JAMES, C. J.

(1) That plaintiff was conductor of a mixed freight and passenger train going from Toluca to the city of Mexico, in the republic of Mexico. The railway ran over what was called the "Mountain," which was an ascent having a grade of 4 per cent., i. e. 4 feet to the 100, for a distance of about 10 miles. The train was one of about 19 cars, and was carrying at the time from 80 to 100 passengers, and to move it over the grade required the service of three engines. At the base of the mountain one engine was placed in front of the regular engine at the head of the train, and one in the rear of the train, — this being known as the "pusher engine," one of the most powerful in the service, — of which one Hobart was the engineer, and a Mexican the fireman, on the occasion of the injury complained of. After the train had climbed the grade a distance of about eight miles, the helper engine (the one in front) became disabled by the breaking of the rod which connected it with the tender. The plaintiff, who was the conductor, in the stopping of the train, caused the brakes to be applied, and went forward, and cut off the front engine, and sent them forward to the station called Zalazar, at the top of the grade, for assistance. About five minutes after this, the engineer of the rear engine, Hobart, appeared at the head of the train, where plaintiff was, having left his engine. Plaintiff said to him that he must have a "damn sight of confidence in his fireman," to leave him alone on his engine on that grade, and ordered him back to his engine. Hobart's reply was that his engine was in as safe hands as plaintiff's train was. At that moment the train began moving backward, and the engine in the rear was observed to be working. Plaintiff immediately commenced setting the brakes, passing from one car to the other in doing so, setting the brakes as tightly as possible. After doing this on several cars, as plaintiff was in the act of stepping from one car to another in continuing to do so, the coupling link broke where he was stepping, and the train parted, and plaintiff fell between the cars and broke his right leg above the ankle, which necessitated amputation, but managed, by throwing his body to one side, to escape further injury. At this time, Hobart was behind plaintiff, and could not get to his engine, because of a culvert in his way, which the train had passed over. At the time plaintiff was hurt, the train was moving down at the rate of about six miles an hour. (2) The fireman on the pusher engine knew nothing of the working or mechanism of an engine, and it was some act of his, during the absence of the engineer, that caused the engine to become reversed. It was in evidence that on this grade great caution was necessary on the part of employes, and that the superintendent's orders to engineers, posted up at stations, prohibited engineers leaving their engines, except at a station, to receive orders. (3) It appeared that a brakeman who was in the caboose climbed over the engine into the engine room, and by reversing it, and giving it steam, stopped the train, after plaintiff was hurt, and two passengers killed. (4) This occurred in December, 1888. It was shown that, in the latter part of 1887, Hobart had been discharged from the service of defendant for having, by reckless running, caused a wreck, while one of its engineers; that during the first half of 1888 he was re-employed by the same company, and continued in its employ until this occurrence, and for a short time afterwards. There was evidence that he was at times reckless in the performance of his duties, and that the officers were informed of it. (5) It appears that it was a part of the conductor's duties to inspect couplings, brakes, etc., before leaving with trains, and as often when out as the train stopped. But there was no evidence that the breaking of the coupling in this instance was caused by any defect that plaintiff could have observed by inspection, but on the contrary it appears that at this time more than one coupling broke, caused by the extraordinary strain exerted on them. (6) That the then superintendent of the division, R. C. Peebles, personally made examination of the wreck, and its cause, which resulted in the discharge of Hobart. At the time of the re-employment of Hobart, one J. M. Winslow was master mechanic, and re-employed him with the consent of the then superintendent. Younge. Winslow was master mechanic at the time of the former discharge. It also appears that upon the re-employment of Hobart the train master, Coppeck, protested against his being re-employed, — in order to inform the new superintendent, calling attention to the former wreck caused by him, and to his general reputation; that nothing was done, and Hobart was continued in the service as engineer until a short time after this accident. (7) The evidence was conflicting as to whether the train master was a fellow servant of plaintiff. The evidence of Daniel O'Connor was that the master mechanic was the officer to whom it was the duty of the train master to report the conduct of engineers. The testimony of Coppeck was that the master mechanic employed them with consent of the superintendent or train master; that the master mechanic could discharge them for incompetency, as regards knowledge of machinery and care of same, but in respect to train rules, and unskillful handling of trains and engines, the duty devolved on the train master to discharge for incompetency and misconduct, but the actions of both the master mechanic and train master are subject to revision and reversal by the superintendent. However, the court charged favorably to defendant, that they were fellow servants. (8) The evidence establishes the fact that the plaintiff and the engineer were fellow servants, and the jury were so charged. (9) The evidence was conflicting as to whether plaintiff knew, or ought to have known, of the engineer's unfitness. (10) We conclude that the evidence of reckless conduct on the part of this engineer does not relate to a time subsequent to his re-employment; and, furthermore, we conclude that the train master protested against the re-employment of the engineer, giving his reasons, and that the same was unheeded, and he did nothing more in the matter. (11) That plaintiff, at the time of his injury, was 36 years of age; his business, that of railroad conductor, earning from $150 to $165 per month; that he was afterwards able only to do light work, and unable to get employment as a conductor, and his earning capacity has been diminished two-thirds of what it formerly had been; that he expended several hundred dollars for treatment, as a result of the injury; and that he still suffers pain therefrom.

Conclusions of Law.

The negligence relied on is as follows: (1) In the use by appellant of a defective coupling link on its train; (2) the negligence of the, engineer in leaving his engine; (3) the negligence of the company in having in its employ a dangerous and reckless engineer, knowing him to be such.

The court, in dealing with this case, treated the engineer and plaintiff as fellow servants, and so charged the jury, and held the evidence of negligence in respect to the coupling link and draught bar as not sufficient to go to the jury to show negligence on the part of the company, and so charged the jury; and the case was restricted to the question of the negligence of appellant in employing a known unsuitable engineer, together with the question of the negligence of the engineer, and contributory negligence of plaintiff, in respect to the particular injury occasioned. It is not necessary to consider the ruling in reference to the sufficiency of the testimony concerning the draught rod and the coupling link, for, notwithstanding the court excluded these features from the case, the verdict was in favor of appellee. Appellee suggests that if the jury could have found from the evidence that appellant did use a defective link, unfit for its purpose, which appellant knew, or ought to have known by ordinary diligence, and that appellee did not know of the defect, and could not have known of it by the exercise of ordinary care, and that the latter received his injuries directly from such cause, the judgment ought to be affirmed, without reference to the errors assigned; in other words, that this court should examine the evidence, and dispose of the case on an issue of fact which was not submitted to the jury, and which was not a fact conceded. This would be exceeding our authority.

The first of the errors assigned is that the court charged the jury as follows: "The defendant, as a railroad company, has no means to act, except through its agents; and the act or negligence of an agent in the performance of his duties is, in law, the act or negligence of the company itself." This charge, standing alone, would have encouraged the finding of a verdict for the negligence of a fellow servant. But immediately following upon this the court dispels any such effect, as the jury are distinctly instructed that the company would not be liable for the negligent act of the engineer, if it had used ordinary and reasonable care and diligence in employing him. Considered in connection with other portions of the charge, the above clause is not subject to criticism.

The second assignment of error complains of the following charge: "If the plaintiff has shown that the defendant failed to use ordinary care and diligence in employing the engineer who operated said pusher...