Moore v. Jones

• Decision Date: 23 January 1897
• Citation: 39 S.W. 593
• Parties: MOORE v. JONES.
• Court: Texas Court of Appeals

39 S.W. 593

MOORE v. JONES.

Court of Civil Appeals of Texas.

January 23, 1897.

Appeal from district court, Tarrant county; W. D. Harris, Judge.

Action by E. Moore against Morgan Jones, receiver of the Ft. Worth & Denver City Railroad Company, for personal injuries caused by the negligence of defendant and his employés. From a judgment entered on a verdict directed by the court in favor of defendant, plaintiff appeals. Affirmed.

Martin & Smith and R. L. Carlock, for appellant. Stanley, Spoonts & Thompson, for appellee.

HUNTER, J.

Appellant was a conductor on a freight train on the Ft. Worth & Denver City Railroad, in the employment of appellee, who was receiver of said road. He was injured by a collision caused by reason of his train parting a few miles north of Rhome, in Wise county, whereby he and one brakeman were left in the caboose, and the engineer, fireman, and head brakeman went on in charge of the engine and eight box cars. The parting was caused by a link or pin, or both, breaking, but the evidence fails to show which. The separation of the different parts of the train was not discovered by the conductor until the collision occurred, when he was, by force of the collision, thrown against the door of the caboose, and seriously injured. When the engine was near Rhome, the engineer discovered that his train had parted, and gave the usual signal for "train broke in two," which was three blasts from his whistle. The conductor and his part of the train were then a half mile behind the engine. The whistle could be heard five miles. The engineer then supposed that the rear part of the train was under control, as it appeared to be moving slowly. It was down grade to Rhome station, where the engineer stopped at a water tank, to take water for his engine, where he also put off his brakeman, with orders to flag the conductor's part of the train. The brakeman succeeded by his yells in attracting the attention of the rear brakeman, who attempted to get to his brake, but the collision occurred when he was within about six feet of his brake. There was a red light displayed from the station signal box, which the engineer observed, and the rules required that he should not pass a red light until he received orders. He could have run 250 feet past the red light, to the south end of the switch, which would have placed him about 500 or 600 feet further away from the hinder part of the train; and, if he had done so, the hinder part could have been gotten under control, and the collision have been avoided. The engineer was employed by the master mechanic, and the conductor was employed by the superintendent, who has the power to discharge him. Conductors are promoted from brakemen, and never get to be engineers; while engineers are promoted from hostlers, and hostlers from firemen, and never get to be conductors. Each is at the highest point of promotion in his line of service. The court below, upon this evidence, directed the jury to find a verdict for defendant, and this is here assigned as error.

We think the charge was correct, because the conductor and engineer were fellow servants, and the master is not liable for injuries to an employé caused by the negligence of his fellow servant. Railway Co. v. Warner (Tex. Sup.) 35 S. W. 364. It is contended by appellant that, as the train had parted, new relations existed between him and the...