Panhandle & S. F. Ry. Co. v. Sledge

• Decision Date: 12 July 1930
• Docket Number: No. 3406.,3406.
• Citation: Panhandle & S. F. Ry. Co. v. Sledge, 31 S.W.2d 146 (Tex. App. 1930)
• Parties: PANHANDLE & S. F. RY. CO. v. SLEDGE et al.<SMALL><SUP>*</SUP></SMALL>
• Court: Texas Court of Appeals

Page 146

31 S.W.2d 146

PANHANDLE & S. F. RY. CO. v.SLEDGE et al.^*

No. 3406.

Court of Civil Appeals of Texas. Amarillo.

July 12, 1930.

Rehearing Denied September 10, 1930.

Appeal from District Court, Lubbock County; Clark M. Mullican, Judge.

Action by Mrs. Josie Sledge and husband against the Panhandle & Santa Fé Railway Company.Judgment for plaintiffs, and defendant appeals.

Reversed and rendered.

Terry, Cavin & Mills, of Galveston, Madden, Adkins, Pipkin & Keffer, of Amarillo, and Wilson, Randal & Kilpatrick, of Lubbock, for appellant.

Schenck & Triplett, of Lubbock, for appellees.

HALL, C. J.

This action was instituted by Mrs. Josie Sledge, joined by her husband, G. L. Sledge, to recover damages on account of personal injuries which she received while she was employed in operating the boarding cars used by the bridge gang employed in working upon the defendant's line of railway.

The case was tried to a jury and resulted in a verdict in favor of appellee against appellant railway company in the sum of $1,097.

The first contention is that the court erred in overruling the appellant's general demurrer to the appellee's petition.

Omitting the formal parts and setting out only the material allegations, the petition is substantially as follows:

That defendant owns and operates a line of railway which extends from Lubbock to Canyon and into and through the town of Cleta, and that during the entire year of 1928 and ever since said time defendant has operated said railway, tracks, lines, and cars in the usual and customary way.That on or about the 3d day of April, 1928, said defendant was operating said line of railway and trains of cars, and for the purpose of keeping up the roadbed, track, lines, depots, fences, and other improvements on and along the right of way of said railway at and between the towns of Lubbock and Cleta, said defendant company was using a bridge gang or construction gang, and that, for the purpose of maintaining said gang or force of workmen, said company furnished for use by them certain cars or train of cars, fully equipped with convenient places to sleep at night and at other necessary times, and a convenient place for cooking and serving meals for the use and benefit of said workmen and employees, and so maintained said cars or train of cars from the 3d day of April, 1928.

That on said last-named date the said G. L. Sledge was employed by defendant company as a workman or employee with said construction gang.That the plaintiffJosie Sledge, the wife of G. L. Sledge, was also employed by said defendant company, its officers and agents, to operate said dining car and said sleeping cars; her duties being to cook and serve meals to said employees in the service of the defendant railway company and look after the dining car and cooking department and to look after and do certain work on all of the dining and sleeping cars and departments, she to furnish all groceries and other articles cooked and to be cooked and prepared by her for serving in said dining car, at her own expense, and to charge therefor a price to be fixed by the defendant company; she to receive as compensation for her services all profits that she might make by serving said company, its servants and employees, as alleged, and staying or living at or on said cars, and that her husband G. L. Sledge was to receive, and did receive, a fixed wage or salary for his personal services as a member of said bridge gang.

That plaintiff charged for said dining room services the amount fixed and directed to be charged by defendant company; the charge being for each person about $1 per day.That, in order to purchase, prepare, and serve such meals, plaintiff was compelled to hire help, which was an extra cost, and, after all expenses were paid each month, said plaintiff made and secured for her services about the sum of $50 or $60 per month.

That at such time plaintiffJosie Sledge was about 47 years of age, was in good health, strong, weighed about 200 pounds, and was physically and otherwise able and competent to carry on the work required of her, and did carry on such work in a manner satisfactory to said defendant and its employees.That she began her labors as such employee about the 2d day of April, 1928.That plaintiff employed one Julia Little, at her own cost and expense and with the knowledge and consent of said defendant company, to assist plaintiff in her said duties.That the said Julia Little remained at and on said cars at all times along with plaintiff and performed such labors as were required of her.

That on or about the 3d day of April, 1928, it was verbally agreed and understood by and between plaintiff and the defendant, acting by and through its authorized agent and foreman, Dan Amberg, that, if plaintiff would prepare, furnish, and serve the meals required for the employees of the defendant in connection with the work being carried on by said company as aforesaid, defendant would furnish a movable toilet for the use of plaintiffs, and particularly for the use of the plaintiffJosie Sledge and the other ladies with said crew.That, at the time of making such contracts and agreements, it was customary for the defendant to furnish, in connection with said boarding car, a movable or other suitable toilet for the use of persons operating said boarding car and particularly the ladies connected therewith, and it thereby became the implied duty of said defendant company to furnish said toilet with said cars or in connection therewith at the points where said cars were stationed, for the use of the ladies connected therewith.That plaintiffs relied upon said company to carry out and perform its obligation and agreement and contracts to furnish a toilet for the use of said ladies and particularly the plaintiffJosie Sledge on said cars, and depended upon said defendant company to perform its said duty and obligation to furnish the same as alleged.That, at the date of making the alleged agreements, defendant company did not have or furnish, although it had done so prior to said time, a toilet for the use of said plaintiff and the other ladies connected with said car, but soon after making said contract and agreements and soon after plaintiff took up her duties on said boarding car, she observed the absence of such toilet and took it up with the agent of the company in charge of said bridge gang, who was then the authorized agent of the company and who agreed with these plaintiffs that, If plaintiffJosie Sledge would go on with her work of furnishing and serving meals, the defendant company would furnish a toilet for the use of the plaintiff, and thereupon said company did furnish a toilet of a collapsible nature, which was carried along with said bridge gang and cars, being taken down while moving and set up on the right of way of said company when the cars were stopped for work, and that said toilet met all the requirements and necessities of said plaintiff and the other ladies who had business at or on said cars, until the defendant company failed to furnish said toilet as alleged.

That about the 21st day of August, 1928, said defendant's bridge gang and cars were located at the city of Lubbock, but, on account of some wreck or emergency business at or near the town of Cleta, the defendant company, by the use of one of its engines or locomotives, removed said bridge gang and cars from the city of Lubbock, leaving immediately, without giving notice or sufficient time to allow the placing of said toilet on said cars, but left said toilet at the city of Lubbock, and therefore had no toilet with said bridge gang for plaintiff's use.That the removal of said cars and bridge gang was done on such short notice that plaintiffJosie Sledge, as well as Julia Little and Dan Amberg, the foreman of said crew, and some of said bridge gang employees, were left in the town of Lubbock, although they were expected to go with said bridge gang cars, and said persons were compelled later to follow and join said bridge gang cars.That defendant company also failed at said time to take the push car and other tools and Implements necessary and proper for use by said bridge gang.That said defendant company could have taken said toilet at said time, or could have taken it on what is known as the push car, it being empty and was later taken along, but said company failed and refused to take said toilet along in any of said cars or to send the same at a later date.That the bridge gang cars were taken from Lubbock to Cleta and there stationed and left while said bridge gang was engaged in work for said company.That, while stationed at Cleta, said plaintiffJosie Sledge and the other ladies were compelled to do without the use of...