Missouri Pac. R. Co. v. Williams

• Decision Date: 05 November 1889
• Citation: 12 S.W. 835
• Parties: MISSOURI PAC. R. CO. <I>v.</I> WILLIAMS.
• Court: Texas Supreme Court

12 S.W. 835

MISSOURI PAC. R. CO.v.

WILLIAMS.

Supreme Court of Texas.

November 5, 1889.

Appeal from district court, Anderson county; F. A. WILLIAMS, Judge.

Whitaker & Bonner, for appellant. Gregg & Reeves, for appellee.

GAINES, J.

This suit was brought by appellee against appellant to recover damages for a personal injury. The uncontroverted evidence shows that plaintiff was a car-repairer in the shops of the defendant company, at its yard in Palestine. One Monroe was master car-builder, with general supervision of the repair department at that point. One Holmes was foreman of the car-repairers under him. Plaintiff was ordered by Holmes to go under a car to repair it, which was not upon a repair track, but upon a track used in the transportation department, in connection with the main track. Plaintiff obeyed the order of Holmes, and went under the car to repair it, as it was necessary for him to do. While lying under the car, it was struck by another car, and the wheel of the car he was repairing, driven upon his heel, inflicting a serious injury. The plaintiff testified that, before he went under the car, Holmes promised him to watch, and to see that he was not injured. He also asked two other employes to watch. He relied upon the promises both of Holmes and of another employe of defendant to protect him. He also testified that he was a car-repairer in the employment of the defendant company, in connection with others who were under the direct orders and control of Holmes; and that Holmes had the power to employ and discharge the hands under his control. Other witnesses testified to the same facts, as to Holmes' power to employ and discharge hands. The defendant introduced testimony tending to show, that Holmes did not have the power, but that it was lodged with Monroe, the master car-builder.

The first error assigned by appellant is as follows: "The verdict and judgment are contrary to law, and unsupported by the evidence, in that the facts clearly show that Holmes, foreman, etc., did not sustain the relation of vice-principal to appellee, but was only a fellow-servant in respect to the alleged negligence whereby appellee received his injuries. And the facts clearly show that appellee did not rely on the promises of Holmes to protect, but on the promise of Colby, a volunteer and fellow-servant, and Morris, a switchman and fellow-servant; and that his injuries were not the proximate result of appellant's negligence, but were the result of appellee's own want of due care, or of the negligence of his fellow-servants, for which appellant is not legally liable." The evidence was sufficient to warrant the finding by the jury that Holmes had the power to employ and discharge hands, and the verdict is conclusive upon that point. The question therefore arises whether he is to be deemed the representative of the company, or a fellow-servant, as to the employes under his control. Upon this question the authorities are conflicting. The courts of many of the states hold that it is only when an employe is charged with a duty which, by its implied contract, a railroad company has undertaken towards its employe, such as furnishing a safe track and machinery, and the employment of careful and skillful servants, and the injury results to another employe from his neglect to perform that duty, that he is deemed the vice-principal of the company, and not the fellow-servant of the injured party. On the other hand, there are numerous cases which hold that the employe who has charge of a special department of a company's business, with power to employe and discharge the servants in his department, is not to be deemed the fellow-servant of those under his control. This rule has been recognized and followed by this court. Wall v. Railway Co., 4 Tex. Law Rev. 37. A servant who has the authority to employ other servants, under his immediate supervision, exercises an important function of his master, and has as full control over them as the master would have, were he present, acting in person. The subordinate, in such a case, is as much the servant of the agent who employs and controls him as he would be of the master, were the latter discharging the functions of his agent. It seems, therefore, that there is as much reason for holding that a servant assumes the risk of the master's negligence as for holding that he assumes the risk of the negligence of such a superior employe of...