"Appellee sued the appellant, railway company, to recover damages for personal injuries inflicted upon him about the 6th of August, 1907, by one Jim Milam, a servant of appellant. Both Milam and Day were members of the bridge gang, and it was alleged that Milam was assistant foreman and in authority over Day. A recovery was sought upon the ground that the railway company was negligent in employing Milam and retaining him in its service. A trial resulted in a judgment against the railway company in favor of Day, and the case is now pending before us on appeal.
"It was shown by practically uncontroverted evidence that in August, 1907, appellee, the witnesses Harrison, Bush, Turner, Diffie, and Brown, with one Jim Milam and other parties, under the witness Irby as foreman, constituted a bridge and building gang in the services of appellant. Jim Milam was `straw boss,' or `scratch boss,' or assistant foreman. In the absence of the foreman, he had supervision over and directed the gang. The foreman when present controlled the gang, but Milam was expected to lead in the work, and the foreman would tell him what he wanted done, and he (Milam) would tell the men, and to this extent they were under him, even when the foreman Irby was present. Milam had no authority to employ or discharge hands. The only authority he had in that regard, even in the absence of Irby, was to report men who did not do to suit him, and Irby discharged or not as he saw fit. On August 6, 1907, the gang was at work, at Circleville, in Williamson county, in loading on the cars the material of a water tank that had been torn down. Irby, the foreman, was with the gang. While engaged in this work, Milam made an assault on Day with a knife, inflicting on him serious wounds.
"Concerning this assault and the circumstances attending it, the evidence is, in substance, as testified by appellee, viz.: `At the time of this injury, I could not state positively just how much of this tank had been loaded, but we were attempting to load the hoops—that is, Mr. Irby gave an order to the boys to see if they could not get the hoops; but we found there was more material on them, and Jim Milam kept calling out to us to load the hoops: "By God, come on." Mr. Irby had given us another order, but Jim kept calling on us to load the hoops. The hoops held the tank together, but the other parts of the tank were wooden. * * * The best of my recollection is Milam said, "Come on, go to the cars," or "Come on." We were confused by the orders. Mr. Irby had told us to do one thing, and Mr. Milam was telling us to let them go. * * * We were hesitating on account of conflicting orders, and we were making different remarks. I just says, "we will have to get somebody to tell us what to do," and I looked up and saw him (Jim Milam) running through the crowd with a knife, and he says, "I have stood enough," "I have taken enough," or something like that. I did not know who he was after, but I knew in a few minutes; he ran upon me, cutting and slashing.'
"There was evidence tending to show previous bad feeling between Milam and Day. Milam ran away immediately after the difficulty, and there was evidence tending to show that he afterward committed suicide.
"The evidence on the issue of negligence of the company in the employment and retention of Milam in its service, and as to Milam's character is, in substance, as testified by the witnesses as follows: Appellee testified: `I became a member of Mr. Irby's bridge gang about the 1st of July, 1907, and continued to be a member of the gang until the 6th of August following. Mr. Milam was a member of the gang all that time, but he was hurt and out part of the time. Mr. Milam was quick-tempered and quarrelsome; unpleasant. This was not the case the whole time I was with him. Some time he would get quarrelsome, and some time he was a very pleasant man. At times he was tyrannical with the men employed under him. At times he was an unpleasant man. Milam drank intoxicants. He had been drunk. I had seen him drinking. When he would pass through a wet town, he would usually get a bottle of whisky, and I remember one time he ran the cook off; said the cook had stolen a bottle of whisky off of the ice. I did not see Milam what you would call drunk. The cook left the outfit. Our understanding was because he bawled him out about the whisky. I knew that Milam was a drinking man. Some of the time he was all right, and some of the time he was rough; he was rough, and some of the time he drank. Milam was unpleasant, and some of the time we might not be on the very best terms, but they had hauled me out of Ft. Worth, and I had to stay there. Some of the time we were not on the best of terms. I remember the night before the cutting he was sick, and I gave him some medicine. Of course, on bridge work some feelings come up between all men. At times things were not very pleasant between Milam and me, but nothing serious. While we were not the very best of friends, at the same time I had nothing against him. I cannot say that before Milam and I had disagreed any more than the others. I didn't admire Milam. I don't know how well I let him know that. When he started after me with his knife, he said something about he had taken enough; something like that.'
"J. R. Bush, witness for plaintiff, testified as follows: `I had been working with the bridge crew at the time of the cutting continuously since the 10th or 12th of July, 1907. I do not know how long Jim Milam had been working for the Missouri, Kansas & Texas Railway Company of Texas, but he was working for them when I commenced on the
date last above mentioned. I was with Jim Milam all the time during working hours from about July 10 to August 6, 1907, and had every opportunity to become well acquainted with Milam as is possible in that length of time. I knew Milam's habits as to whether or not he was sober or a drinking man. I knew his disposition as to whether he was a quiet and peaceable and well-disposed man, or whether or not he was high and quick-tempered. He was what is called a drinking man, and was not a quiet, peaceable, and well-disposed man. He had a high and quick temper when drinking and after being drunk. Jim Milam drank to excess whenever he could get whisky, and he usually kept whisky on hand. He drank whisky. He drank at all times, both on and off duty. Can't say he drank any more on Sundays than on other days, for he drank all that he could get at all times. There was a difference in his disposition towards the members of the crew when he was sober and when he was drinking, except after he had been drunk he was about the same as when he was drunk. When he was drinking, or just after a drinking spell, he was awful overbearing and hard to get along with. I knew the general reputation of Jim Milam among the members of the bridge crew for sobriety or the excessive use of intoxicants; his reputation was that of getting drunk and being addicted to the drinking habit to excess, and that he was not a sober man. I know his general reputation at said time among said persons as to being a peaceable and orderly person, and as to being quarrelsome, overbearing, and tyrannical in his disposition. He had the reputation of being a quarrelsome, overbearing, and tyrannical man and boss, and his reputation was that he was not a peaceable and orderly person. I know the general reputation of Milam at said time among said persons as to his being competent, safe, or suitable person to be placed in charge of, or to be associated with, other employés, or in charge of them in their work.'
"On cross-examination this witness testified: `I had been a member of the gang since about July 10, 1907, and remained a member of same six or eight days after the difficulty. I quit the service at Temple, and have resided since said time about six miles southwest of Commerce, Hunt county, Tex., where I now reside. * * * I do not know of Jim Milam having a personal difficulty with any one except L. F. Day. He had various rackets, fusses, and quarrels, but this is the only fight I knew of his having. It is not a fact that Milam was or was usually considered to be an ordinary, peaceable, well-disposed, and agreeable fellow. * * * He (Milam) was having some words with some member of the crew all the time. He talked in an overbearing and quarrelsome manner to some of them all the time, and by "some of them" I mean those to whom his remarks were directed at the time, for he talked to all of them in that manner; but it would be to some of them at a time. However, there was one member of the crew that I never heard him talk in that manner to but once, and that was Max Brown. On Saturday before the difficulty on Monday, he directed different members to go upon a scaffold, and each of them refused because it was not safe; he then directed Max to go upon it, and he refused, giving as his reason that it was not braced properly. Milam was intoxicated on duty so many times it is hard to give the dates or places, for it was so often that I got used to it, and did not take special notice of it. He was drunk on the Saturday before the difficulty at the time and place above mentioned. He was drunk on duty at Lorena about...
