Payne v. Robey

• Decision Date: 30 January 1924
• Docket Number: (No. 495-3895.)<SMALL><SUP>*</SUP></SMALL&gt
• Citation: Payne v. Robey, 257 S.W. 873 (Tex. 1924)
• Parties: PAYNE, Agent, v. ROBEY.
• Court: Texas Supreme Court

257 S.W. 873

PAYNE, Agent, v.ROBEY.

(No. 495-3895.)^*

Commission of Appeals of Texas, Section A.

January 30, 1924.

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

Action by Z. R. Robey against John Barton Payne, Agent.The Court of Civil Appeals affirmed judgment of district court in favor of plaintiff(244 S. W. 214), and defendant brings error.Reversed and rendered.

Baker, Botts, Parker & Garwood and Garrison & Watson, all of Houston, for plaintiff in error.

Carothers & Brown, of Houston, for defendant in error.

BISHOP, J.

Defendant in error, in his suit against plaintiff in error, in his petition alleged that he was an employee of plaintiff in error in the capacity of cook, on a dining car operated in connection with trains running between points in Louisiana and points in Texas; that on the morning of July 16, 1919, while it was yet dark, he went into the kitchen of said car to perform his duties and stepped into a waste hole in the floor and fell, whereby he was injured; that said waste hole should have been covered and plaintiff in error was negligent in failing to have same covered; that plaintiff in error also negligently failed to provide a proper light and allowed the electricity on said car to have become exhausted, by reason whereof the kitchen was in darkness and he could not see that the said waste hole had been left open; and that the dining car was engaged in interstate commerce.The plaintiff in error answered by general demurrer, general denial, and plea of contributory negligence.

On trial before a jury on special issues the jury found that plaintiff in error failed to exercise ordinary care to furnish defendant in error lights reasonably sufficient for the performance of the duties required of him, and that the failure to exercise such care was a proximate cause of his injuries; that defendant in error was in charge and control of the kitchen on the dining car in which he was injured, and it was his duty, as chief cook of the kitchen, to see that the waste hole was properly covered before the kitchen was closed and locked for the night; that it was his duty to go in person to see that this waste hole was covered before he retired, and that his failure to do so was negligence and a proximate cause of his injuries; that he suffered injury in the amount of $2,000, and that such amount should be diminished $1,000 by reason of his contributory negligence.The trial court on this verdict rendered judgment for defendant in error for $1,000, and the Court of Civil Appeals affirmed this judgment in an opinion stating fully the facts, and quoting the sections of the federal Employers' Liability Act(U. S. Comp. St. §§ 8657-8665), providing that a common carrier engaged in interstate commerce shall be liable in damages to an employee suffering injury, for such injury "resulting in whole or in part from the negligence of any of the officers, agents, or employees of such carrier, or by reason of any defect or insufficiency, due to its negligence, in its cars, engines, appliances, machinery, track, road bed, works, boats, wharves, or other equipment," and that "the fact that the employee may have been guilty of contributory negligence shall not bar a recovery, but the damages shall be diminished by the jury in proportion to the amount of negligence attributable to such employee."244 S. W. 214.We quote from the court's finding of facts as follows:

"The record shows without dispute that the car came into Lake Charles at about 11 o'clock on the night before appellee was injured, and was due to leave west early the next morning.The steward in charge of the dining car told appellee to get up at 4 o'clock the next morning to begin getting breakfast.Appellee went to bed between 11 and 12 o'clock, and left the third and fourth cooks cleaning up the kitchen.There were four cooks; the second, third, and fourth being under the instructions of the first cook.It was their duty to do what the first cook told them to do.The third and fourth cooks were the ones that usually cleaned up the kitchen, and they were instructed never to leave the waste hole open.The waste hole was some 10 inches in diameter in the floor of the kitchen, and was used to dump garbage through.The car was lighted with electricity from storage batteries.When appellee went to bed the lights were burning, but the steward went to bed and left the fan over his berth running, and the next morning, when appellee got up, there were no lights; the electricity was exhausted.There were no candles on the car, and the only place where appellee knew he could get any matches was in the kitchen.It was perfectly dark in the kitchen when appellee went in there, and while attempting to get the matches he stepped into the waste hole, which was uncovered, and was injured."

The...