Missouri, K. & T. Ry. Co. of Texas v. Whitaker

• Decision Date: 23 November 1895
• Parties: MISSOURI, K. & T. RY. CO. OF TEXAS v. WHITAKER.
• Court: Texas Court of Appeals

Page 716

33 S.W. 716

MISSOURI, K. & T. RY. CO. OF TEXAS v. WHITAKER.

Court of Civil Appeals of Texas.

November 23, 1895.

Appeal from district court, Grayson county; Don A. Bliss, Judge.

Action by Jeff. Whitaker against the Missouri, Kansas & Texas Railway Company of Texas. There was a judgment for plaintiff, and defendant appeals. Reversed.

This suit was commenced in the district court of Grayson county, Tex., February 23, 1893, by petition filed by Jeff. Whitaker, whereby he sought to recover from the Missouri, Kansas & Texas Railway Company of Texas damages for personal injuries received while in the employ of defendant, and through its alleged negligence. Plaintiff claimed that he was employed as a laborer in defendant's roundhouse at Denison, and that while passing through the same, in the discharge of his duties, he was run down and injured by a locomotive engine moving upon one of the tracks in the roundhouse. As grounds of negligence, he alleged that it was in the nighttime; that an engine on an adjacent track was blowing off steam, preventing the moving engine from being seen or heard, and that defendant's employés operating the latter ran the same at a high and improper rate of speed through the roundhouse; that no man was sent ahead of the engine, in its passage, to see that the tracks were clear, and no signals or warnings of the approach of the engine were given. Defendant answered by general denial, and a special plea of plaintiff's contributory negligence, in failing to keep proper lookout and avoid the moving engine; that the risk of being so struck and injured was one of the perils incident to his services in the roundhouse, and assumed by him; and, if the negligence of any person other than plaintiff contributed to cause his injury, it was the negligence of a fellow servant. On the trial of the cause, March 7, 1894, plaintiff recovered a judgment for $1,000. From this judgment an appeal has been prosecuted to this court.

Foster & Wilkinson, for appellant.

FINLEY, J. (after stating the facts).

The first, second, and third assignments of error complain of the refusal of the following requested special instructions: (a) "The plaintiff and the hostler operating the engine of defendant by which plaintiff was struck, under the undisputed facts of the case, were, within the meaning of the law of the state, fellow servants; and the defendant is not liable for any negligent act or omission of said hostler, though the same may have caused injury to plaintiff without plaintiff's fault. (b) By the terms `same grade of employment,' in the definition of `fellow servants' given in the charge, it is not meant that two employés must be engaged in work of equal dignity, or receiving equal compensation. If neither has any superintendence or control over the other, or any authority to direct the other in the performance of any duty, they are of the same grade of employment. And under the facts proven in this case a hostler employed to bring engines into the roundhouse and take them out, and a boiler-washer helper employed to wash out boilers in the roundhouse, both being employed to work at the roundhouse, and employed by and subject to direction of the foreman of the roundhouse, would be, within the meaning of the law, of the `same grade of employment.' (c) By `servants working together at the same time and place, and to a common purpose,' in the definition of `fellow servants,' is not meant that two servants must engage in the same kind of work, or in work which brings them at all times in the same place. If defendant maintained at Denison a roundhouse for the care and repair of the engines used on its road, under charge of a roundhouse foreman, a hostler employed to bring into such roundhouse, and to take out from it, engines coming in from or going out on the road, and one employed to wash out boilers of engines in said roundhouse, both employed by and working under the roundhouse foreman, would be, within the meaning of the law, working together at the same time and place, to a common purpose, and in the same department of service." The evidence, so far as it touches the relation of plaintiff and the hostler who was in charge of the engine and whose negligence, it is alleged, caused the injury, to the railway company and to each other, and as to the material circumstances under which the injury occurred, is entirely without conflict, and clearly establishes the following facts: At the time of the injury, September 6, 1892, plaintiff was employed by defendant in its roundhouse at Denison as a boiler-washer helper. Jack Jones, a white man, was boiler washer. Plaintiff and another negro were his helpers. Their duties were, when an engine was brought to the roundhouse, to blow it off, and wash out the boiler. The roundhouse was a building in the form of a half circle, inclosed on the outer side and ends, but open upon the inside of the...