Nix v. Texas & P. Ry. Co.

• Decision Date: 08 December 1891
• Citation: 18 S.W. 571
• Court: Texas Supreme Court
• Parties: NIX v. TEXAS & P. RY. CO.

18 S.W. 571

NIX v. TEXAS & P. RY. CO.

Supreme Court of Texas.

December 8, 1891.

Commissioners' decision. Section A. Error from district court, Harrison county; A. J. BOOTY, Judge.

Suit by John A. Nix against the Texas & Pacific Railway Company to recover for personal injuries. There was judgment for defendant, and plaintiff brings error. Reversed.

W. H. Pope and Wilson & Lane, for appellants. T. H. Prendergast, for appellee.

COLLARD, J.

This suit was brought in the district court of Harrison county by John A. Nix, plaintiff in error, to recover of defendant in error, the Texas & Pacific Railway Company, actual damages for personal injuries alleged to have been caused under the following circumstances: Plaintiff and one Rapp were both in the employ of the defendant, drilling a well for defendant at Sierra Blanca. Rapp was assistant foreman, and plaintiff working under him as engineer, Rapp being in charge of the work, and having power to employ and discharge hands engaged about the same. Plaintiff and Rapp were the only persons engaged in the work, and Rapp had employed plaintiff for defendant. On the 24th day of November, 1888, Rapp ordered plaintiff into the belt-room to oil up the machinery used to operate the drill. While plaintiff was in the belt-room in obedience to this order, Rapp negligently, and without warning plaintiff, applied the steam to the machinery and set the same in motion. This he did from the drill by means of ropes and pulleys connected with the engine. At the time the machinery started plaintiff was at or near the driving belt, which was fastened together by iron clamps, which were improperly constructed with square corners instead of round corners. The clamps caught up a hose used to supply the engine and machinery with water, the hose struck plaintiff, and forced him against a pulley, injuring his leg severely, and crippling him for life. Plaintiff worked at the engine, and Rapp at the drill, where he could, by means of the ropes, apply the steam at will, and regulate the drill. Plaintiff also alleged that he did not know that the iron flanges used to fasten the belt were improperly constructed, and were dangerous, but that defendant did know such fact. Defendant answered by pleas of not guilty and contributory negligence on the part of plaintiff. The trial resulted in a verdict and judgment for defendant.

The first assignment of error is that the court erred in the charge to the jury, instructing them as follows: "If the evidence shows that the plaintiff and one Rapp were in the service of the defendant, and, while so in the service, the plaintiff's duty was to manage as an engineer a certain stationary steam-engine for the purpose of driving a drill, in order to sink a well for the defendant, and the said Rapp was to have charge of the drill used for the purpose of sinking said well, and by means of ropes and pulleys, connecting the drill with the engine, Rapp's duty was to apply the steam force to said drill, then said Rapp and plaintiff were fellow-servants, and plaintiff could not recover for any injury to him by reason of any careless or negligent act of said Rapp, even though the jury believe that said Rapp had authority to employ and discharge from service of defendant the plaintiff." This charge did not apply to the facts as shown by plaintiff, and was misleading. There was some evidence tending to show, but positively disputed by evidence for defendant, that Rapp was in charge of the work, and that plaintiff was subject to his orders, as well...