Stephenville, N. & S. T. Ry. Co. v. Wheat

• Decision Date: 14 November 1914
• Docket Number: (No. 8015.)<SMALL><SUP>†</SUP></SMALL&gt
• Citation: 173 S.W. 974
• Parties: STEPHENVILLE, N. & S. T. RY. CO. et al. v. WHEAT.
• Court: Texas Court of Appeals

173 S.W. 974

STEPHENVILLE, N. & S. T. RY. CO. et al. v. WHEAT.

(No. 8015.)^†

Court of Civil Appeals of Texas. Ft. Worth.

November 14, 1914.

Rehearing Denied December 19, 1914.

Appeal from District Court, Comanche County; J. H. Arnold, Judge.

Action by Lester Wheat against the Stephenville, North & South Texas Railway Company and others. From a judgment for plaintiff, defendants separately appeal. Affirmed.

E. B. Perkins and D. Upthegrove, both of Dallas, Marshall Ferguson, of Stephenville, and Harry P. Lawther, of Dallas, for appellants. Goodson & Goodson, of Comanche, Woodward & Baker, of Coleman, and Theodore Mack, of Ft. Worth, for appellee.

CONNER, C. J.

During the year 1911 Thompson & Scott, a firm composed of J. W. Thompson and John R. Scott, were engaged as contractors in the construction of a line of railway for the appellant railway company. Appellee was employed by said firm as an engine watchman in the railway yards at Maxwell, in Comanche county, and on the night of September 23, 1911, in the course of his duty, was endeavoring to pass from the tender of a locomotive standing upon one of the tracks in the yards back and over some water tanks situated upon a flat car attached to the engine. As he alleged and testified, while in the act of traversing a board laid upon the top of the water tank for that purpose, another employé of the contractors suddenly and with violence started the engine in such manner and with such force as to throw appellee from the board mentioned off of the car, whereupon he fell into the bed of a dry creek some 30 feet below, thereby receiving very serious injuries. Later this suit was instituted against both the railway company and against the contracting firm of Thompson & Scott, appellee alleging, among other things, to the effect that both appellants were jointly engaged in the construction of the railway, and that at the time of his accident he was engaged in the performance of service for both of them.

The trial before a jury resulted in a verdict and judgment in appellee's favor against both the railway company and Thompson & Scott for $15,000, with a judgment for the same sum in favor of the railway company on its cross-plea against the firm of Thompson & Scott and John R. Scott, who had been served personally. The railway company and Thompson & Scott have prosecuted separate appeals. We will first dispose of the appeal of the appellant last mentioned.

This appellant first insists by appropriate assignment that the court erred in overruling its general demurrer to the appellee's petition. It is insisted that it is bad on general demurrer, for the reason that it is therein alleged that Thompson & Scott were but the agents and servants of the railway company in the performance of the work of constructing the railway; the contention being that in such event the railway alone was responsible. While the petition contains allegations as imputed, and while it seems logically true and has support in authority (Blake v. Ferris, 5 N. Y. 48, 55 Am. Dec. 304) that the principle of respondeat superior has no application to a mere agent or servant not an active participant in a wrong made to constitute the foundation of an action, yet we find that the allegations of appellee's petition, upon which the contention under consideration is predicated, were evidently made in anticipation merely of the defense in support of which all the force of both appellants was directed; to wit, the defense that Thompson & Scott were independent contractors for whose act and negligence the railway company was in no wise responsible. The petition otherwise, however, when construed in the light of the rule that on general demurrer every reasonable intendment is to be indulged in its favor, substantially alleges that the appellant railway company and the contracting firm were jointly engaged in the construction of the road, and that appellee was employed by both defendants, which, if true, as we must assume for the purposes of the demurrer, would certainly entitle appellee to relief. The assignment relating to the general demurrer will therefore be overruled.

This appellant also complains of the action of the court in overruling its special exception. The exception is to the effect that the plaintiff's allegations descriptive of his injury are too general and indefinite. The allegations thus attacked are as follows:

"Plaintiff was suddenly and with great violence, and without any notice by which he could protect himself, hurled from the top of said tank off of said tank car, and fell into the bed of a dry creek, about a distance of 30 feet, and by reason thereof was rendered unconscious, and had his back broken or greatly crooked, and was severely hurt or injured in the small of his back, and was totally paralyzed from his hip down to and including his feet."

It was further alleged that the injuries specified are incurable and permanent and rendered appellee incapable of doing work of any kind or of earning money in any capacity that he ever had, and, on the whole, we think the allegations were sufficiently specific to inform appellant of the nature of the injuries received. Too great particularity in description is not to be expected; the purpose of the law being to fairly apprise a defendant of what he will be called upon to meet. Many authorities might be cited in support of the court's ruling. We will, however, refer to a few of them only. See Railway v. Brown, 30 Tex. Civ. App. 57, 69 S. W. 1010; Rapid Transit Ry. v. Allen, 54 Tex. Civ. App. 245, 117 S. W. 486; Railway v. McMannewitz, 70 Tex. 73, 8 S. W. 66; Railway v. Mitchell, 72 Tex. 171, 10 S. W. 411; Railway v. Coffman, 160 S. W. 145.

We will add that, if it could be said that there was error in the ruling, it is not made to appear that appellant in any way was prejudiced thereby. In no assignment presented is it suggested that appellant upon the trial was surprised by the evidence relating to appellee's injuries, or misled by the allegations under consideration, nor is there any assignment that questions in any way the extent of appellee's injuries or the amount of the verdict and judgment. So that in no view of the assignment under consideration would we feel authorized to reverse the judgment because of the court's ruling. The assignment, accordingly, will be overruled.

In appellant's fifth assignment it is insisted that the court should have given a requested charge for an instructed verdict, and in the eighth assignment that the court erred in admitting certain of appellee's testimony, on the ground of a variance between allegations of the petition and the evidence. The insistence as developed in the statement and argument under these assignments is that, inasmuch as it was alleged that the board from which appellee fell extended from the tender of the engine to the top of the first tank upon the water car, instead of from the first tank back to the second tank on the car, as he testified, the variance is fatal. We fail to see in what way the variance indicated was misleading or prejudicial to any right appellant had. The record fails to show that in any way appellant was surprised by the variance indicated, or that it could materially affect the consequences of the engineer's negligence in suddenly starting the engine, as appellee testified he did. The fifth and eighth assignments are accordingly overruled. McClelland v. Smith, 3 Tex. 210; Brown Candy Co. v. Johnson, 159 S. W. 684, 685; W. U. Tel. Co. v. Hinkle, 3 Tex. Civ. App. 518, 22 S. W. 1004; Krueger v. Klinger, 10 Tex. Civ. App. 576, 30 S. W. 1087; Jones v. Meyer Bros. Drug Co., 25 Tex. Civ. App. 234, 61 S. W. 553; Traction Co. v. Court, 31 Tex. Civ. App. 146, 71 S. W. 779; Houston Light Co. v. Hooper, 46 Tex. Civ. App. 257, 102 S. W. 133; Haralson v. Traction Co., 53 Tex. Civ. App. 253, 115 S. W. 876; May v. Pollard, 28 Tex. 677; Smith v. Shinn, 58 Tex. 3; Hays v. Samuels, 55 Tex. 563; Lasater v. Van Hook, 77 Tex. 655, 14 S. W. 270; Brown v. Sullivan, 71 Tex. 470, 10 S. W. 288; Phipps v. Willis, 11 Tex. Civ. App. 186, 32 S. W. 801.

The remaining assignments of this appellant are the third, fourth, sixth, and seventh, which are objected to by appellee, and will be disregarded, inasmuch as they present objections to clauses of the court's charge and to the action of the court in refusing special charges requested, for the reason that the record fails to show that the objections to the court's charge were presented before its delivery to the jury, and fails to show that exceptions were taken to the action of the court in refusing the special charges, as required by act approved March 29, 1913 (Gen. Laws, 1913, p. 113). See Heath v. Huffhines, 168 S. W. 974; Railway Co. v. Wadsack, 166 S. W. 42; Mut. Life Ass'n v. Rhoderick, 164 S. W. 1067; Railway Co. v. Tomlinson, 169 S. W. 217.

We are of the opinion, therefore, that, as assigned, no error in the judgment in appellee's favor against Thompson & Scott has been presented which will authorize a reversal. The judgment as against this appellant will accordingly be affirmed.

This brings us to the more difficult question of what shall be done with the appeal of the Stephenville North & South Texas Railway Company. Aside from assignments complaining of errors in the court's charge, which are not now available for want of a showing of the proper objections in the court below, and an assignment complaining of an argument on the part of appellee's counsel, which we do not think should cause a reversal, the vital question presented by the assignments of error is whether the court should have given the peremptory instruction directing a verdict in favor of the railway company, on the grounds that the undisputed evidence shows that appellee at the time of his injury was a servant of, and subject to the control of, an independent contractor alone, and that the act of negligence made the foundation of the action against the...