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

• Decision Date: 11 October 1905
• Parties: MISSOURI, K. & T. RY. CO. OF TEXAS v. DEAN.<SMALL><SUP>*</SUP></SMALL>
• Court: Texas Court of Appeals

89 S.W. 797

MISSOURI, K. & T. RY. CO. OF TEXAS v. DEAN.^*

Court of Civil Appeals of Texas.

October 11, 1905.

Appeal from District Court, Grayson County; J. M. Pearson, Judge.

Action by James Dean against the Missouri, Kansas & Texas Railway Company of Texas. From a judgment for plaintiff, defendant appeals. Affirmed.

Rehearing denied November 8, 1905.

T. S. Miller and Smith & Beaty, for appellant. Wolfe, Hare & Maxey, for appellee.

JAMES, C. J.

This is an appeal from a recovery of damages for personal injury in the sum of $3,000. The testimony showed that Dean was one of a gang of laborers in appellant's employ, known as the rustling gang, which worked in the yard, cleared away things, and moved things from one place to another as directed by the foreman. S. E. Franks was the foreman of the gang, who, to use his expression, "ran the gang," and whose duty was to oversee the gang, control them, and tell them what to do. A tool box was being moved by means of hand sticks placed under the box, which were held by three men on each side. Franks had received orders to move this box. Dean had hold of one end of the middle stick, and Franks had one end of the rear stick. In carrying the box, Franks was shown to have let down his end suddenly, which threw the box up in front and the weight on the middle men, resulting in injury to plaintiff.

The assignments of error 1 to 3 assert that the evidence showed no negligence with which appellant was chargeable, that the court should have directed a verdict for defendant as was requested, and erred in charging in substance that negligence on the part of the gang foreman in letting down his end of the stick would be negligence of defendant, and that in doing such act the foreman would be deemed a vice principal. The contentions are carried into two propositions, in which it is urged that because the foreman was at the time not giving any orders, nor performing any duties of the master, or any such as were intertwined with the duties of the master, but was by accommodation doing labor as a fellow servant with the plaintiff, he was not a vice principal in the matter. Further, it was not shown that it was any part of the foreman's duty to perform the manual labor in which he engaged on this occasion, but that his duty was merely to oversee and control the gang and give orders and directions, hence he was not in the performance of his duties when plaintiff was injured, and defendant was therefore not liable for his act. The duties of this gang extended to moving things in and about the premises, and Franks was their foreman in reference to any work they so performed, and while they were performing it. Any negligence of his in reference to such work, resulting in injury to one of the gang while so engaged, would be an act committed in the scope and line of his duty. It seems to us to be a too narrow view to take of the evidence to say that his connection with the service extended no further than to give orders to the men to do a certain work. The work, while in progress, was subject to be done in the manner he directed, and in this instance he directed, tacitly at least, that the box be carried by the five men, in connection with himself. He testified that he received orders to move this box. This order came from the...