Texas Bldg. Co. v. Reed

• Decision Date: 23 May 1914
• Docket Number: (No. 628.)<SMALL><SUP>†</SUP></SMALL&gt
• Citation: 169 S.W. 211
• Parties: TEXAS BLDG. CO. v. REED.
• Court: Texas Court of Appeals

169 S.W. 211

TEXAS BLDG. CO. v. REED.

(No. 628.)^†

Court of Civil Appeals of Texas. Amarillo.

May 23, 1914.

Rehearing Denied June 27, 1914.

Appeal from Jack County Court; J. P. Simpson, Judge.

Action by Raymond Reed against the Texas Building Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Flournoy, Smith & Storer, of Ft. Worth, for appellant. Henley & McComb, of Jacksboro, for appellee.

HUFF, C. J.

The appellee, Raymond Reed, instituted this action against the Texas Building Company, appellant, and against W. J. Clarke. Upon trial before a jury judgment was rendered against appellant for the sum of $578, from which appellant appeals. The appellee did not procure service against W. J. Clarke, and the suit was discontinued as to him, and the issues were tried as between appellant and appellee. It is alleged substantially in the petition: That the appellant was engaged in the work of raising rails on a railroad and filling in under them, known as "surfacing." The line of railway upon which such work was being done was the Gulf, Texas & Western Railway Company, between Jacksboro and Saylesville. Part of the work alleged as then being done was the taking up of the extra cross-ties, steel rails, etc., along said line of railway. That appellant employed and worked a great number of men at the date in question, and was operating a railroad and running an engine and work train with flat cars upon the said line of road, which was being surfaced. That W. J. Clarke was on said date, June 4, 1913, employed and working for appellant as foreman and boss of a gang of laborers under the employment of appellant, and on that day Clarke was in command and had charge and direction of the work and of appellee and other employés. At that time appellee was working for appellant, together with other employés, under the superintendence of Clarke, and with the work train, and that they were then operating it on the line of railroad aforesaid, and stopping it along the lines at various points, picking up cross-ties and extra steel rails and other material along the track and loading the same on flat cars. While appellee and others, under the direction of Clarke, were attempting to load a steel rail on a flat car, and before the end of which appellee had hold of had been raised high enough to turn loose, without great injury to himself and others, the superintendent or boss and others began yelling conflicting calls and orders, which were confusing to appellee, so that he was unable to tell what was meant, and the men who were carrying the other end dropped their end of the rail too soon, which caused the rail to fall upon and catch, mash, and crush appellee's hand. It is alleged that he was wholly without fault or negligence, and that his injury was caused by the negligence of appellant, its agents, and employés —

"in charge of said engine and cars, in this: That the boss in charge as agent of said company was negligent and careless in the respect that he did not have some one person to give the signal word for letting down or dropping the rails; that he was negligent and careless in the respect that he allowed any and all the men that were raising and lifting the rails to yell, holler, and give orders at the same time; and, further, that he ordered and placed most of the strong men at one end of the rail which plaintiff and others were attempting to load at the time, and that this injury to plaintiff resulted, and placed weaker and insufficient number at the other end with plaintiff."

The appellant answered by general denial and contributory negligence that the acts complained of by appellee, to the effect that there were confusing orders given by appellant's employés, and that such acts or omissions, if any, where by fellow servants of appellee; that the work which appellee and his colaborers were engaged in at the time was under the exclusive charge and control of W. J. Clarke, who had entered into a contract in writing with appellant for the consideration mentioned in the contract, and that appellee and those who were working with him in the performance of the work were the employés of Clarke, and under his direct supervision and control, and were not employés of appellant, nor under its control; that the work being done was for Clarke, and not for appellant.

The appellee answered, by supplemental petition, that the contract set up as having been made between appellant and Clarke was a subterfuge and an attempt on the part of appellant to defeat liability, and was an insidious attempt to shift its own liability onto Clarke, who was pecuniarily irresponsible; that Clarke was not an independent contractor, but a mere subcontractor and agent and employé of appellant; if said contract did create the relation of an independent contractor, that such relation had been destroyed and abrogated by a practical construction of said contract by the parties themselves, and that appellant did in fact exercise direction, control, and management of the details of the work to be done under the contract, and exercised direction and control as to the mode, manner, and means of doing said work and exercised control, etc., of the men working under Clarke upon the work; that it was not binding upon appellee; and that he never heard of such relation existing between Clarke and appellant until after this suit was instituted.

The appellant assigns error upon the refusal of the trial court to give its specially requested peremptory charge to find a verdict for it (1) because the evidence did not show that Clarke had power and authority to employ and discharge appellee for appellant, and they were therefore fellow servants; (2) because the undisputed testimony showed that appellee's injuries were caused by the negligence of the fellow servants of appellee. And the fourth assignment is to the effect that the court erred in refusing to render judgment for appellant on its motion to do so, because it appears from the finding of the jury to the third specially requested instruction that appellee was a fellow servant with those whose negligence caused his injury.

The appellant, the Texas Building Company, entered into a contract with the Gulf, Texas & Western Railway Company to build a railroad on what is known as the Jacksboro extension to Saylesville, and that it did do so and employed Clarke and others on the work. Under the contract with the railway company, that company was to furnish appellant a work train to use in the construction of the road, and that it was to pay for its use. Some time during the construction of this road one Samuel Kaye, an agent and employé of appellant, entered into a contract of employment with the appellee at Mineral Wells. The appellee had been directed to this work by an Employers' Bureau at Ft. Worth, and Kaye met him at Mineral Wells and sent him out upon the work, agreeing to pay him $1.75 per day. Kaye told the appellee at the time that he (Kaye) was then working for appellant, and on that day he took appellee to the hotel, paid for lodging until he could be sent out over the road on to the work, and paid his expense at the hotel, and bought him a ticket, telling appellee that the conductor would put him off at the place where the work was being done. The appellee at that time did not know of any contract existing between Clarke and the appellant, but thought that he was working for appellant. The facts in this case show that appellee received his injuries about June 4, 1913, substantially as alleged by him, and the facts are sufficient to show that appellant had no rules or system with reference to directing the men to act in unison in laying down or handling steel rails. Clarke himself testifies that they had no such rule or system, and that it would have been safer or better for them to have had such rule. The evidence is sufficient to show that, if appellant at this time was in charge of this work, it was negligent in the manner in which this work was done under its direction and management. Appellant introduces in evidence a contract entered into between it and Clarke, which will be referred to more in detail, under the consideration of the proper assignment.

We think the facts in this case show that, while appellant was a private corporation, it was nevertheless engaged in the operation of a railroad within the meaning of articles 6640 and 6641, R. S. 1911. Cunningham v. Neal, 101 Tex. 338, 107 S. W. 539, 15 L. R. A. (N. S.) 479. Under the facts of this case, we are inclined to think that appellant was engaged in operating a railroad, and that appellee was engaged in the work of operating a train thereon, and under such facts appellant would be liable to appellee for injury occasioned by his fellow servants. This case in its facts is much the same as those in the case of Railway Co. v. Thornton, 46 Tex. Civ. App. 649, 103 S. W. 437. The jury found that appellee was injured while engaged in the work of operating a train. The Supreme Court, in the case of Railway Co. v. Anderson, 102 Tex. 402, 118 S. W. 127, in referring to the Thornton Case, suggested that it had features which may distinguish it from the cases of Railway Co. v. Johnson, 47 Tex. Civ. App. 74, 103 S. W. 447, and Railway Co. v. Howard, 97 Tex. 513, 80 S. W. 229. In the recent case of Glover v. Houston Belt (Civ. App.) 163 S. W. 1063, Judge Higgins calls attention to the conflict in the decisions, and we think announces a correct rule. Whether we are correct or not in our views upon this question, we nevertheless think that Clarke was vice principal of appellant and in charge of the work, such as would render appellant liable for negligence on his part. If Clarke was not an independent contractor, then under article 6641, R. S. 1911, and the evidence in this case, and the findings of the jury, he was a vice principal and intrusted with authority to superintend, control, and command other servants then on the work being...