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

• Decision Date: 02 May 1908
• Citation: 110 S.W. 758
• Parties: MISSOURI, K. & T. RY. CO. OF TEXAS v. PENNEWELL et al.<SMALL><SUP>*</SUP></SMALL>
• Court: Texas Court of Appeals

110 S.W. 758

MISSOURI, K. & T. RY. CO. OF TEXAS v. PENNEWELL et al.^*

Court of Civil Appeals of Texas.

May 2, 1908.

Rehearing Denied May 23, 1908.

Appeal from District Court, Hunt County; T. D. Montrose, Judge.

Action by Amy Pennewell and others against the Missouri, Kansas & Texas Railway Company of Texas. From a judgment for plaintiffs, defendant appeals. Affirmed.

Coke, Miller & Coke and Jno. T. Craddock, for appellant. J. P. Yates and N. L. Carpenter, for appellees.

RAINEY, C. J.

This is an action for damages for injuries resulting in the death of H. L. Pennewell, brought by his surviving wife and father and mother. The defendant answered by general demurrer, general denial, and contributory negligence. A trial resulted in favor of plaintiffs, and defendant appeals.

Complaint is made of the action of the court in overruling the general demurrer to plaintiffs' second amended original petition. The proposition is that the defect in the petition consists in not alleging "that at the time when and place where the injuries resulting in the death of Pennewell were sustained the deceased was acting in the line of his duty in the service of defendant, or within the scope of his employment in the discharge of any duty in connection with or incident to his service as a switchman." The petition in substance alleges that deceased was in the employment of defendant as a switchman in defendant's yards at Greenville, and while so engaged with the switching crew was under the direction and control of a foreman; that said crew was switching cars, using an engine operated by an engineer and fireman; that said engine was attached to several cars, which had come to a standstill. Deceased was standing beside the track and near the foreman when said foreman and one of the switching crew signaled the engineer to move forward, and at that instant deceased stepped on the track in the rear of the cars to which the engine was attached, but, instead of going forward, the engineer instantly moved backward and struck deceased, pinning him between two cars, and causing his immediate death. While these allegations do not show that deceased at the very moment he was killed was engaged in the performance of any specific act of duty, it does show that he was on the ground, subject to the commands of his foreman, and ready to discharge any duty that might be necessary as switchman. The act of deceased in stepping in the rear of the cars did not sever the relation of master and servant for the time, and the defendant was not relieved of the duty of that care that was due to its employés. The petition was not subject to the general demurrer, and the court did not err in overruling it. Railway Co. v. Scott, 71 Tex. 703, 10 S. W. 298, 10 Am. St. Rep. 804; Railway Co. v. Welch, 72 Tex. 298, 10 S. W. 529, 2 L. R. A. 839; Railway Co. v. McHale (Tex. Civ. App.) 105 S. W. 1149.

Appellant's second assignment of error is as follows: "The court erred in refusing to give to the jury defendant's special charge No. 1, as follows: `The evidence fails to show that the deceased had any duty to perform between the car which had been cut off and the fourth car from the engine, and it fails to show that he was engaged at the time of the accident in the performance of any duty within the scope of his employment. You are therefore instructed to find for the defendant, because (1) the evidence wholly failed to show that the deceased, at the time of the accident resulting in his death, was engaged in the performance of any duty incident to or connected with his employment as a switchman, but, on the contrary, the evidence showed that there was no cause or necessity in connection with his duty as switchman for him to be between the cars at the time the accident occurred, and the evidence wholly failed to show that the engineer knew...