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

• Decision Date: 20 May 1896
• Citation: 36 S.W. 487
• Parties: MISSOURI, K. & T. RY. CO. OF TEXAS v. FERCH.<SMALL><SUP>1</SUP></SMALL>
• Court: Texas Court of Appeals

36 S.W. 487

MISSOURI, K. & T. RY. CO. OF TEXAS v. FERCH.¹

Court of Civil Appeals of Texas.

May 20, 1896.

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

Action by F. F. Ferch against the Missouri, Kansas & Texas Railway Company of Texas for personal injuries. There was judgment for plaintiff, and defendant appealed. Reversed.

R. C. Foster, A. E. Wilkinson, and Head, Dillard & Muse, for appellant. C. B. Randell, for appellee.

JAMES, C. J.

Plaintiff, Ferch, was injured by a pile driver crushing his hands while he was in the act of placing a ring around the head of the pile to keep it from splitting, which was one of his duties. The jury found that the injury happened, not from any negligence on his part or that of his co-employés, but through defects in the apparatus which could have been discovered and remedied by the exercise of ordinary care. The assignments of error, down to the eleventh, are not well taken, for there is evidence to support all the findings of the jury that are questioned. The court directed the jury to find that the pile-driving gang to which the plaintiff belonged when hurt were employés of defendant at the time, which is assigned as error. We are constrained to hold that there was a view of the testimony which required this issue to be left to the jury. The machine was appellant's, and plaintiff was one of the crew which had been operating it for appellant for a long time previous; but it was in testimony that they were ordered to report to Fratt, the chief engineer of the Southwestern Construction Company, which company the evidence shows to have been an independent contractor for appellant, engaged in completing its line to Houston; that they, with the pile driver, had been in the service of the construction company for about two months when this injury occurred. It was testified to that it was explained to all the men, by their foreman, that they were going down there to work for the construction company, and that while there they were under the orders and direction of the construction company, and appellant did not have any control over them, or the right to discharge the men. The fact that the appellant carried the men on its pay rolls during the time, and that they were paid with its checks, is not controlling. It was shown that appellant billed on the construction company for the amounts, and therefore the latter paid them, after all. It was also in evidence that the construction company was chargeable with inspecting and repairing the machine while they had it. We are not informed of the terms of the contract or arrangement between appellant and the construction company relative to this use of the pile driver and crew, except as they may be inferred from the testimony. It would appear that appellant, being anxious to have its line finished, allowed its machine and crew to work for the construction company, under some arrangement, one of the considerations of which we know to be that expense of the men and supplies was to be borne by...