Missouri, K. & T. Ry. Co. v. Hutchens

• Decision Date: 30 March 1904
• Citation: 80 S.W. 415
• Parties: MISSOURI, K. & T. RY. CO. v. HUTCHENS.<SMALL><SUP>*</SUP></SMALL>
• Court: Texas Court of Appeals

80 S.W. 415

MISSOURI, K. & T. RY. CO. v. HUTCHENS.^*

Court of Civil Appeals of Texas.

March 30, 1904.

Appeal from District Court, Grayson County; Rice Maxey, Judge.

Action by G. F. Hutchens against the Missouri, Kansas & Texas Railway Company. From a judgment in favor of plaintiff, defendant appeals. Affirmed.

Hayden W. Head and Head & Dillard, for appellant. Wolfe & Hare, for appellee.

FLY, J.

Appellee sued appellant to recover damages arising from personal injuries alleged to have been inflicted through the negligence of appellant. Trial by jury resulted in a verdict and judgment for appellee in the sum of $4,000.

Appellee was in the employment of appellant as a truckman, or, in the language of the witnesses, a "trucker." It was his duty to haul freight to and from cars on a truck. On the day appellee was hurt, he had gone into a freight car with a truck loaded with freight, and was about the center of the car when a door fell from the top of the car and struck him on the back of the neck and back, and knocked him senseless. He received serious and permanent injury, and suffered great pain. The door which fell was an inside one, and, when a car was to be loaded or unloaded, the inside or grain doors were fastened to the top of the car by hooks attached to the top, which clasped into eyes on the doors. The witnesses for appellee and those for appellant, including Ari Wilson, united in testifying that it was the duty of the latter, who is called a "cleator" or "sealer," to inspect the doors of freight cars, and the fastenings thereon, and to prepare the cars for truckmen to work in. He nailed the cleats to the floor of the cars to hold in place an appliance known as the "iron run," upon which trucks were rolled into and out of the cars. If the doors were out of fix, it was his duty to repair them. It was also his duty to fasten the inside doors to the tops of the cars, and to see that the fastenings were secure. The duties of appellee were to take his truck into a car, where it was loaded with freight by what is known as a "breaker," and then carry the load to the place indicated by the check clerk. There was not a particle of evidence that tended to show that appellee and Ari Wilson were fellow servants, but, on the other hand, the uncontroverted testimony showed that they were not fellow servants. It is true that Wilson swore that when the cars were high he got a truckman to assist him in fastening the inner doors to the top of the car, but he did not fasten the door that fell and injured appellee, and no one had assisted him in and about his duties with the car in question. Whether it was high or low does not appear. The court did not err, therefore, in instructing the jury that the negligence of Wilson was that of appellant, if the duty of inspecting the doors and fastenings thereof, and preparing the car for the truckmen, devolved on him. Railway v. Kernan, 78 Tex. 294, 14 S. W. 668, 9 L. R. A. 703, 22 Am. St. Rep. 52.

The definition given in article 4560g, Rev. St. 1895, comprehends all employés of every person, receiver, or corporation operating a railroad or street railway, and the requirements of that statute must be met, in order to bring Wilson and appellee into the relation of fellow...