Southern Pac. Co. v. Wellington

• Decision Date: 24 June 1896
• Citation: 36 S.W. 1114
• Parties: SOUTHERN PAC. CO. v. WELLINGTON.
• Court: Texas Court of Appeals

36 S.W. 1114

SOUTHERN PAC. CO. v. WELLINGTON.

Court of Civil Appeals of Texas.

June 24, 1896.

Appeal from district court, El Paso county, W. M. Coldwell, Judge.

Action by W. C. Wellington against the Southern Pacific Company to recover for personal injuries. Judgment for plaintiff, and defendant appeals. Reversed.

Davis, Beall & Kemp, for appellant. Peyton F. Edwards and Millard Patterson, for appellee.

FLY, J.

On August 20, 1891, appellee filed his suit to recover damages for personal injuries, alleging that he had been employed as a car repairer by appellant in its shops at El Paso; that the lumber and materials used by the workmen were across a side track from the workshop, and on a certain day it became necessary for appellee to cross over said track to obtain a certain sand board; that in returning, and while crossing the side track, an engine propelled some freight cars against him, catching him between two cars and seriously injuring him. In the original petition it was alleged that the injury occurred through the failure of the yard master and brakeman to obey a rule furnished by appellant. On November 14, 1894, appellee filed his first amended original petition, in which pleading the injury was alleged as in the original petition, but that the injury was caused by a failure on the part of appellant to establish rules for giving warning to employés of the approach of cars. It was also alleged that the yard master and brakeman were negligent and incompetent. The amended petition was excepted to because it set up a new cause of action, which was barred by limitation; because it showed that appellee was injured by his own negligence, or that of his fellow servants; and because the charge of incompetency and carelessness against the yard master and brakeman was too general. The last exception was sustained; the others, overruled. The cause was tried, and resulted in a verdict and judgment in favor of appellee for $4,000.

The first assignment complains of the action of the court in overruling the first exception to the petition, and it is contended that the amended petition set up a new cause of action, different from, and independent and contradictory of, that alleged in the original petition, and that the same was barred by limitation. We do not think the contention well founded. The cause of action in the original petition was the injury inflicted by the negligence of appellant upon appellee, and this was retained in the amended pleading. Railway Co. v. Mitten (Tex. Civ. App.) 36 S. W. 282; Railway Co. v. Frazier (Tex. Civ. App.) 34 S. W. 664. Appellee alleged that he was an employé of appellant, and that he had been injured through the negligence of appellant in failing to promulgate proper rules for the protection of its employés from cars in motion in its yards at El Paso. To recover, it became necessary for appellee to show that the relation of master and servant existed between him and appellant at the time of the injury, and that it controlled the yards at El Paso, and the duty devolved upon it to make rules for the protection of its employés. The relation of master and servant arises out of a contract, express or implied, between the master, on the one hand, and the servant, on the other; and it follows that, to hold the master liable for injuries to his servant, the contractual relation must be established. Wood, Mast. & Serv. § 4; Railway Co. v. Culberson, 72 Tex. 387, 10 S. W. 706. The facts presented in the case under consideration are very peculiar, and we have not seen any one similar to it. In 1886 or 1887 appellee was employed by the Southern Pacific Company as a car repairer in the shops in El Paso, and he continued to labor in the same shops until he was injured, in 1891. He testified that he had no notice of a change of masters, and believed that he was working for the Southern Pacific Company until he was injured. Appellee having established the fact that he had been employed by the appellant in 1886 or 1887, the presumption, under the facts, would arise that the relation of master and servant existed between them in 1891, and the burden rested upon appellant to show that it had been severed prior to the time of the accident. To this end, testimony was introduced to show that in 1886 and 1887 appellant was the lessee of the road, equipment, shops, etc., of the Galveston, Harrisburg & San Antonio Railway Company, but that on July 1, 1889, the lease was canceled, and the owner of the road and its appurtenances took possession of the same, and had since been in control of it. The cancellation of the lease therefore became an important point in the case. If the lease was in reality abrogated and annulled, and the owner of the road was in possession of it at the time of the infliction of...