Perez v. Atchison, T. & S. F. Ry. Co.

• Decision Date: 25 January 1917
• Docket Number: (No. 642.)
• Citation: 192 S.W. 274
• Court: Texas Court of Appeals
• Parties: PEREZ v. ATCHISON, T. & S. F. RY. CO.

192 S.W. 274

PEREZ v. ATCHISON, T. & S. F. RY. CO.

(No. 642.)

Court of Civil Appeals of Texas. El Paso.

January 25, 1917.

Rehearing Denied February 15, 1917.

Appeal from District Court, El Paso County; Ballard Coldwell, Judge.

Action by Luis Perez against the Atchison, Topeka & Santa Fé Railway Company. Judgment for defendant, and plaintiff appeals. Affirmed.

Volney M. Brown and Jos. M. Nealon, both of El Paso, for appellant. Turney & Burges, of El Paso, and Terry, Cavin & Mills, Jno. G. Gregg, and A. H. Culwell, all of Galveston, for appellee.

HIGGINS, J.

Perez was employed by appellee as a section hand at the station of Ormonde, Ill. His hours of work were from 7 a. m. to 6 p. m. He lived at Ormonde with his family in a section house furnished by defendant and situate upon its right of way. He was subject to call at any time after his regular working hours if anything occurred which required attention. On September 1, 1914, the section gang with which he was working stopped work about 5:30 p. m. and returned to Ormonde. They placed their tools in the toolhouse to the west of the house where Perez lived. Defendant has four tracks at Ormonde which run east and west. The house in which plaintiff lived was situate south of the tracks. After placing the tools in the house, plaintiff started along the tracks to his house, and met his children just before he reached home. They requested and obtained from him permission to go to a house a short distance north of the tracks to get some milk. After granting the permission, Perez passed the house in which he was living, and went a short distance east thereof to a car which was standing on the most southerly track. This was known as the house track. At the time there was a very high wind blowing and some rain falling, and to protect himself therefrom he passed to the east end of the car and stood behind the same. At the time passenger train No. 15 was due at Ormonde, and Perez testifies that his purpose in assuming the position indicated was to watch his children as they returned home and protect them from injury by the train then due and from any harm from the wind and rainstorm then raging. At the time there was another car standing upon the house track. This car was standing alone and some little distance west of the car behind which Perez was standing. The grade sloped from the west to the east. The most westerly car had a defective brake, and the force of the wind started this car to moving. Under the impulse of the wind and force of gravity, it moved easterly and against the car Perez was standing behind, propelling the same against and over him, whereby he sustained very severe personal injuries. The accident occurred a few minutes before 6 p. m., but the day's work had been completed, and he had quit work for the day. The rules of defendant required that station agents must know that all cars standing on side tracks had the brakes properly set, and if the brakes were out of order, the wheels must be blocked, and that a car standing alone should be both braked and blocked. There is evidence that the westerly car was neither properly braked nor blocked, and that the defendant was negligent in leaving it standing in an unsecured position. There is evidence that the section men at Ormonde were permitted to wander in and about the yards there and cross tracks at any point when they were off duty. There was no restriction imposed upon them as to where they should be upon the tracks or right of way. The section hands were required to live in the houses upon the right of way provided by defendant, so they would be immediately available in case an emergency at any time arose for their service.

This suit was by Perez to recover damages arising from the injuries so received. In response to a peremptory instruction, verdict was returned and judgment rendered against him. The instruction was properly given. An employer is only liable as a master to the servant when the latter is actually in his service, and the relation does not exist where it appears that the performance of the master's work had been completed and the servant was engaged in a personal undertaking. Railway Co. v. Gonzales, 163 S. W. 619. At the time of the injury, Perez was performing no service for the defendant, but he was engaged in a purely personal undertaking. Under the facts detailed, appellant claims he was entitled, at the time of his injury, to the care that a master owes to a servant while on duty. It is true that he was subject to call in case of an emergency, but this does not alter the fact that at the time he was not on duty, and was engaged upon his own private affair. The master does not at all hours of the day owe to the servant the care that is owed while the servant is in the discharge of his duty under his employment. The master owes this duty to the servant only while the latter is engaged in the performance of his work. This general rule has been extended to also apply while the servant was necessarily upon the premises of the master in going to and returning from his work, or when for a short time he has stopped his work for some natural or necessary purpose which would fall within the natural contemplation of the master, and also when present upon the premises of the master for some purpose desired by the master, which will assist in the performance of the master's work. Very generally speaking, this covers the time when he is entitled to protection as a servant, and we know of no case that has gone so far as to hold that he is entitled to this protection when he was not performing any duty, when he was not present at the particular place for the master's benefit, and when he was engaged in a purely personal undertaking.

At first blush, the cases cited by the appellant might seem to sustain his contention in this case, but a careful analysis of them will show that each one comes under the rules set out above, and that in each case there was some fact which showed the servant was not on a private...