St. Louis, A. & T. Ry. Co. v. Welch
Decision Date | 14 December 1888 |
Citation | 10 S.W. 529 |
Parties | ST. LOUIS, A. & T. RY. CO. <I>v.</I> WELCH. |
Court | Texas Supreme Court |
Appeal from district court, Smith county; FELIX J. McCORD, Judge.
Action by L. Welch against the St. Louis, Arkansas & Texas Railway Company, to recover damages for personal injuries sustained through the alleged negligence of defendant's servants. Defendant appeals from a judgment for plaintiff.
N. Webb Finley, for appellant. John M. Duncan, for appellee.
This was an action for personal injuries, brought by appellee against appellant. The case made by the plaintiff showed the following facts: The plaintiff was the foreman of a bridge gang in the employment of the defendant company, engaged in putting in and repairing bridges along the line of its road. About 3 o'clock in the morning, on the day of the accident, he was asleep in the bunk of a sleeping car provided by the company for the purpose, which was lying on a side track of the railway in the town of Gilmer. At the time mentioned the employes of the defendant operating a freight train on its road negligently ran the train rapidly upon the side track, and struck the car upon which he was sleeping with such violence that he was thrown from his bunk, and seriously injured. He and the employes who caused the injury were engaged in different departments of the company's road. His employment was in the bridge department, and he received his instructions from the superintendent or management of that department, while the employes on the train were working in the transportation department, and were under the orders of its superintendent. It appears from the testimony that the plaintiff was subject to the orders of the company to go out on duty at any time. Without referring to the assignments of error, it is sufficient to say here that the two questions presented by the record are whether the plaintiff and the employes of the train are to be deemed fellow-servants, in the sense that precludes him from a recovery of the company for injuries inflicted by reason of their negligence; and, if so, whether he is to be considered as on duty at the time of the accident.
Upon the question, who are to be held "fellow-servants," in the legal sense of that term, there is great contrariety of judicial opinion. The doctrine that one fellow-servant cannot recover of the master for injuries inflicted through the negligence of his fellow-servant is of comparatively recent origin. It was first announced in 1837, in the English court of exchequer, in the case of Priestly v. Fowler, 3 Mees. & W. 1. The supreme court of South Carolina laid down the same rule in the case of Murray v. Railroad Co., 1 McMul. 385. This case was decided in 1841, and is the first case in which the rule was applied in this country. The opinion shows that the court were unaware of the decision in Priestly v. Fowler, supra. In 1842 the subject was very carefully considered by the supreme court of Massachusetts in the case of Farwell v. Railroad Corp., 4 Metc. 49, and the same doctrine was announced. This has become the leading case, and has been rigidly followed by the courts of England and by a majority of the courts in this country. The question of persons employed in different departments of the same general business of the common master was considered in that case, and in discussing it Chief Justice SHAW, who delivered the opinion, uses this language:
The language employed in the last sentence quoted has been generally used by courts and text writers as the basis of the definition of the term "fellow-servants." Substantially the same language has been frequently employed by our own courts in defining the term. Railway Co. v. Rider, 62 Tex. 267; Railway Co. v. Harrington, Id. 597; Railway Co. v. Watts, 63 Tex. 549.
The rule so announced in Farwell's Case has, as previously intimated, been followed closely in the courts of England, and generally in the American courts, in its broadest application. Latterly there has been shown some disposition to modify the doctrine, but it has mainly been in the direction of making a distinction between servants of a different grade. The case of Railroad Co. v. Ross, 112 U. S. 377, 5 Sup. Ct. Rep. 184, is a case of this latter character. As to service in different departments of the same common employment, there is less conflict of authority. In the courts of a few of the states it has been held that the employes in different branches of the same general employment are not fellow-servants. This is the rule in Illinois, (Railroad Co. v. Moranda, 108 Ill. 576,) in Tennessee, (Railroad Co. v. Jones, 9 Heisk. 27;) in Kentucky, (Railroad Co. v. Cavens, 9 Bush, 559;) in Georgia, (Cooper v. Mullins, 30 Ga. 150;) and perhaps in Virginia, (Moon v. Railroad Co., 78 Va. 745.) This was the ruling in Indiana in the earlier decisions, (Gillenwater v. Railroad Co., 5 Ind. 339; Fitzpatrick v. Railroad Co., 7 Ind. 436;) but these cases have since been overruled, (Railway Co. v. Arnold, 31 Ind. 174.) Judge Thompson, in his work on Negligence, lays this down as the "exceptional" doctrine. 2 Thomp. Neg. 1026. Our researches have satisfied us that this is correct, and...
To continue reading
Request your trial-
Grattis v. Kansas City, P. & G. R. Co.
...Merchant, 133 U. S. 375, 10 Sup. Ct. 397, 33 L. Ed. 656, — the carpenter, porter, and stewardess of a steamship; Railway Co. v. Welch, 72 Tex. 298, 10 S. W. 529, 2 L. R. A. 839, — foreman of a bridge gang and servants operating a train; Elliot v. Railway Co., 5 Dak. 523, 41 N. W. 758, 3 L. ......
-
Milburn v. Chicago, M., St. P. & P. R. Co.
...reasonably safe place for the use of plaintiff, and to maintain it in that condition. In another case, St. Louis, A. & T. R. Co. v. Welch, 72 Tex. 298, 10 S. W. 529, 532, 2 L. R. A. 839, the foreman of a bridge repair gang was sleeping in a bunk car which was struck by a train. He was subje......
-
Milburn v. Chicago, M., St. P. & P. R. Co.
... ... Crow v. Houck's Mo. & Ark. Ry. Co., 212 Mo. 589; ... Henson v. Kansas City, 210 S.W. 13; Hunt v. St ... Louis, 211 S.W. 673; Oliver v. St. Louis-S. F. Ry ... Co., 211 S.W. 699. (2) The court erred in giving, over ... the objections and exceptions of ... S. Mo., pp. 354, 400; 1927 Code of Iowa, pp ... 229, 230; Papinaw v. Gr. T. Ry. Co., 155 N.W. 548; ... St. L. A. & T. Ry. Co. v. Welch, 10 S.W. 532, 72 ... Tex. 298, 2 L. R. A. 839; Int. & G. N. Railroad Co. v ... Ryan, 18 S.W. 221; Moore v. Ry. Co., 142 N.W ... 154; ... ...
-
Grattis v. Kansas City, Pittsburg & Gulf Railroad Company
... ... 470; Wray v. Electric Light Co., ... 68 Mo.App. 330; Marshall v. Kansas City Hay Press ... Co., 69 Mo.App. 256; Krampe v. St. Louis Brewing ... Ass'n, 59 Mo.App. 277; Roddy v. Railroad, ... 104 Mo. 234; Price v. Railroad, 77 Mo. 508; ... Porter v. Railroad, 71 Mo. 76; ... v. Merchant, 133 U.S ... 375, 33 L.Ed. 656, 10 S.Ct. 397 -- the carpenter, the porter ... and stewardess of a steamship; Railway Co. v. Welch, ... 72 Tex. 298, 10 S.W. 529 -- foreman of a bridge gang, and ... servants operating train; Elliot v. Railroad, 5 Dak ... 523, 41 N.W. 758 -- ... ...