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

• Decision Date: 20 December 1913
• Citation: 162 S.W. 959
• Parties: MISSOURI, K. & T. RY. CO. OF TEXAS v. RENTZ.
• Court: Texas Court of Appeals

Page 959

162 S.W. 959

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

Court of Civil Appeals of Texas. Dallas.

December 20, 1913.

Rehearing Denied January 17, 1914.

Appeal from District Court, Grayson County; W. M. Peck, Judge.

Action by R. Rentz against the Missouri, Kansas & Texas Railway Company of Texas. From a judgment for plaintiff, defendant appeals. Reversed and remanded for a new trial.

A. S. Coke, of Dallas, and Head, Smith, Hare & Head, of Sherman, for appellant. Wolfe, Wood & Haven, of Sherman, for appellee.

RASBURY, J.

Appellee recovered verdict and judgment in the court below against appellant for $6,000 for personal injuries alleged to have been negligently inflicted upon him by appellant by striking appellee with one of its engines while he was passing over and across appellant's platform and tracks in Denison, Tex., on the way to take up his duties as a locomotive engineer for appellant, from which judgment this appeal is taken. The grounds of negligence alleged by appellee and the defenses urged thereto will be sufficiently disclosed in determining the several assignments of error.

The evidence introduced upon trial of the case was conflicting, but in deference to the verdict of the jury it sustains the following conclusions of fact: At the time of the accident appellee was in appellant's employ as switch engineer. His work was performed in appellant's yards in Denison. Appellee, incident to taking up his duties each day, would go from his residence to appellant's roundhouse, where he secured his engine and set about his day's labor. In making his way to the roundhouse it had been his custom, for six or seven years, to go south on Houston avenue (on which avenue he lived), a north and south street, until he reached Gandy street, an east and west street, when he would go east to a point where he would reach appellant's yards, whence he would pursue his way to the roundhouse between tracks 2 and 3; there being at this point six railway tracks. From and at the point where he struck the yards on Gandy street to a point south to Main street, which paralleled Gandy street, the space along his route was the ground or surface depot platform or landing place for appellant's passengers disembarking at its depot situated on the northeast corner of Main street and Houston avenue. This landing place or platform was in part paved with brick and in part spread with gravel. Over this place was laid the tracks of appellant. It was a depot platform and used as such by the general public and appellant's employés. At the time of the accident, appellee, as was his custom, had proceeded east on Gandy street until he reached the appellant's tracks, at which point he changed his course, got between tracks 2 and 3, and started south for the roundhouse. While so pursuing his way and yet upon the platform, and at a point within about 125 or 150 feet of Main street, the fireman on an engine standing on track four called to appellee, who did not halt, but continued his progress a few steps further, when the engineer motioned and also called to him, at which appellee changed his course southeast and across track 3, stopping on the track barely clearing the first rail of track 3, which put him facing the cab of the engine on track 3. Appellee remained on track 3 waiting for the engineer, who was apparently preparing to leave his engine to speak with appellee, but who consumed some three or four minutes in preparations. As the engineer was between his cab and tank so preparing to dismount, appellee saw in his eyes an expression that caused him "to wonder," and upon looking around he discovered an approaching train right upon him, which struck him before he was able to get off the track. When appellee stepped upon track 3 and before he was struck, he looked in both directions three or four times while so standing, and saw no trains. The train which struck appellee was a regular passenger train. This train arrived practically on schedule on the day it struck appellee. Appellee was familiar with the train schedule. The engine which appellee manipulated for appellant was engaged in interstate traffic. Appellee was employed from day to day. At the time he was injured his hours were from 7 p. m. to 7 a. m. On said day he left home at 6:30 p. m., as we have said, to mount his engine, and was on his way to commence his labor when struck in the manner detailed before reaching same.

Appellant urges by its first assignment of error that the court should have instructed a verdict for appellant for the reason that it appears from the evidence that at the time appellee was injured the relation of master and servant did not exist between the parties, and hence his cause of action was not controlled by any statute or rule of decision governing the rights of employer and employé. No complaint is made that the charge of the court incorrectly applied any rule between master and servant, but that the testimony failed to establish such relation, and hence no liability was shown by the evidence. Thus, it will be seen, the single question here is: Was appellee in law, under the undisputed facts, an employé of appellant at the time of his injury? We have just detailed the facts. The general rule in relation to when the master is liable for injuries to the servant, and when such servant is or is not in the master's employment, is stated with singular clearness and brevity in East Line & Red River R. Co. v. Scott, 71 Tex. 703, 10 S. W. 298, 10 Am. St. Rep. 804, where it is said: "It is true that the employer is only liable as master to the servant when the latter is actually in his service, and that at times, during the period of an engagement, the employé may sustain to the employer no other relation than that of stranger. It does not follow from this, however, that the employé is to be deemed in the employer's service only when he is actually engaged in labor. He is to be deemed in the master's service whenever present to perform his duty under the contract creating the relation of master and servant and subject to orders, although at a given moment he may not be engaged in the actual performance of any labor." In the case from which we have just quoted, it was held that an employé whose duties required him to be with a train, subject to call for duty, the engine of which exploded and injured him, was entitled to recover for such injuries, even though not in the performance of his duties at the time of such injury. Similar is the holding and the facts in St. Louis, S. & T. Ry. Co. v. Welsh, 72 Tex. 298, 10 S. W. 529, 2 L. R. A. 839.

In Missouri, Kansas & Texas Ry. Co. of Texas v. Pennewell, 50 Tex. Civ. App. 541, 110 S. W. 758, this court ruled on facts similar to those in the Scott and Welsh Cases, supra. There the injured person had actually entered upon and begun his duties, remaining subject to call, but was not so actually engaged at the time of the injury. Likewise, on the point now under discussion was the holding of this court similar in the facts and the application of the rule in Missouri, Kansas & Texas Ry. Co. v. Balliet, 48 Tex. Civ. App. 641, 107 S. W. 906. The cases cited are distinguishable from the case at bar in that in all the cited cases the employé was either actually engaged in the performance of his duty or present at the place of injury subject to instant call thereto. Here appellee was employed by the day, and while on his way to assume the duties of his employment from which it does not appear that he had been discharged, and while proceeding along the route appellant customarily permitted and allowed its employés to go, he was injured. The case nearest in point cited is Chicago, Rock Island & Texas Ry. Co. v. Oldridge, 33 Tex. Civ. App. 436, 76 S. W. 581. In that case Oldridge, preparatory to assuming his duties as a brakeman, and in order to be ready therefor, took his way to his train, arriving there before his train was "made up" and before his actual duties could begin. It was customary for brakemen to arrive at the location of their trains before they were made up. On reaching the place where his train was to be made up, Oldridge entered a detached caboose which was to be a part of his train to await the making up of the train, which was also the custom of such employés. While in the caboose Oldridge was injured by the negligence of his fellow servants in attaching the caboose to the train. In determining whether or not Oldridge's cause of action was controlled by the law of master and servant, the court, in holding that it was, said: "The testimony of appellee tended to show that it was customary for freight brakemen, when called to go out with a train, to meet the conductor in the caboose, with the food and clothing required for the journey, while the caboose was yet in the yards, and before the train had been made up. If it be true that appellant's business, as well as that of other railway companies, had been habitually...