El Paso & S. W. Ry. Co. v. Kelley

• Decision Date: 29 May 1905
• Citation: 87 S.W. 660
• Parties: EL PASO & S. W. RY. CO. et al. v. KELLEY.
• Court: Texas Supreme Court

87 S.W. 660

EL PASO & S. W. RY. CO. et al. v. KELLEY.

Supreme Court of Texas.

May 29, 1905.

Error to Court of Civil Appeals of Fourth Supreme Judicial District.

Action by Ellis R. Kelley against the El Paso & Southwestern Railway Company and another. There was a judgment of the Court of Civil Appeals affirming a judgment refusing to set aside a default judgment for plaintiff (83 S. W. 855), and defendants bring error. Reversed.

Patterson & Buckler, for plaintiffs in error. P. H. Clarke, for defendant in error.

BROWN, J.

Ellis R. Kelley sued the El Paso & Southwestern Railway Company and the El Paso Terminal Railroad Company for damages sustained by reason of the negligence of the defendants while the plaintiff was in their service as fireman on a steam engine which was operating a steam shovel, the defendants being partners. After describing the machinery with particularity, the petition alleges, in substance, that it was the plaintiff's duty, upon the order of the engineer, Hooper, who was operating the engine at the time, to oil the machinery, and that on the 25th day of November, 1902, while the shovel and engine was standing still, Hooper ordered the plaintiff to oil the machinery, and while the plaintiff was so engaged, and before he had had time to accomplish his work, the engineer, Hooper, negligently moved the said engine, whereby the plaintiff was caught and seriously injured; the injuries being fully described in the petition. It was alleged that Hooper was not a fit and competent engineer, and that the defendants knew that fact, or by the use of ordinary care could have learned it, before employing him. It was alleged that plaintiff's injuries were caused by the negligence of Hooper, and his unfitness for the performance of the services in which he was engaged.

There was a contention as to the sufficiency of the service of citation on the defendants, but we think that question was properly disposed of, and will not take further notice of it. On the 2d day of February, 1904, judgment by default was rendered against the defendants in favor of the plaintiff, and, upon hearing of the evidence, damages were assessed by the court in favor of the plaintiff in the sum of $9,000. On the 10th day of the same month the defendants filed a motion to set aside the judgment by default, and on the 19th of that month they filed an amended motion, which was overruled on the 1st day of March, 1904.

The trial court and the Court of Civil Appeals found that the defendants were not negligent in failing to file answer nor in failing to file their motion within two days, which narrows our inquiry to the question, did defendants show that they had a meritorious defense? As showing the meritorious defense which the defendants could have made, and would be able to make hereafter in case the judgment should be set aside, the amended motion alleged that they could prove the following facts: That plaintiff's injuries were not so serious as he claimed; that his limb was not so injured as to be useless, as was alleged; and that his injuries were not permanent, to the extent charged in the petition. It was alleged that they could prove that, if he was entitled to recover anything, it was not so great as the sum recovered; that the defendants would be able to prove upon another trial that the plaintiff's injuries were caused by his own negligence; and that they could prove by Hooper, who was the engineer, the following facts: "That the plaintiff and the said Hooper were at work on the steam shovel on what is known as `McGinty Hill,' in the city of El Paso, a large bank of gravel and sand, and that the brake belt on the hoisting drum needed oiling, and that the plaintiff went to oil it, and was coming out, and that when said Hooper saw him (the plaintiff) he was standing on two timbers, clear of the machine, and that, believing that the plaintiff was in a safe position, and would so remain, he put on just enough steam to loosen the belt, and that, instead of remaining on the timbers, the plaintiff carelessly and unnecessarily stepped onto the wheel just as the engine turned the wheel, and he was thereby thrown down and injured. That said Hooper was an engineer of large experience, and was thoroughly competent to perform the duties he was employed to perform on that occasion and in that business. That he had had an experience of about eleven years, and was a sober, attentive, and skillful shovel engineer. That the reason why the defendants do not file an affidavit of the said Hooper is that he is now out of the state, and, as they are informed, lives in Denver, in the state of Colorado, and they cannot get, therefore, an affidavit from him in time for use on the trial of this motion." That the defendants would be able to prove on another trial that Hooper, the engineer, had no authority over the plaintiff, but that they were working together at the same time and place, to a common purpose, on the same piece of work, and were fellow servants. That Hooper was a skillful and suitable engineer for the work in which he was engaged. If he was unfit in any manner, the defendants had no notice of the fact, and that they could not have discovered his unfitness by the use of ordinary care. That they used due diligence, in...