Texas & N. O. R. Co. v. Walton

• Decision Date: 13 June 1907
• Citation: 104 S.W. 415
• Parties: TEXAS & N. O. R. CO. v. WALTON.<SMALL><SUP>*</SUP></SMALL>
• Court: Texas Court of Appeals

104 S.W. 415

TEXAS & N. O. R. CO. v. WALTON.^*

Court of Civil Appeals of Texas.

June 13, 1907.

On Rehearing, October 10, 1907.

Appeal from District Court, Harris County; W. P. Hamblen, Judge.

Action by Tom Walton against the Texas & New Orleans Railroad Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Baker, Botts, Parker & Garwood and Lane, Jackson, Kelley & Wolters, for appellant. Lovejoy & Parker and Fisher, Sears & Campbell, for appellee.

GILL, C. J.

The plaintiff, Tom Walton, sued the Texas & New Orleans Railroad Company to recover damages for personal injuries alleged to have been sustained by him as a result of the negligence of the fireman of a switch engine of the company. The defendant interposed a general demurrer, and pleaded general denial, assumed risk, and contributory negligence. A jury trial resulted in a verdict and judgment in favor of plaintiff for $5,000, and defendant has appealed.

Defendant requested the court to instruct a verdict in its favor on the theory that the fireman, J. M. Greer, whose act caused the injuries, was the fellow servant of plaintiff, and by the first assignment of error complains of the refusal of the trial court to give it. The facts are as follows: The plaintiff was in the employ of the defendant as engineer in charge of one of its switch engines. J. M. Greer was the fireman, and they had been engaged on the morning of the accident in switching and shifting freight cars in defendant's yards. About noon they stopped the engine at a water tank to take water. It was the hour when the switching crew usually took lunch, and some of them were so engaged. The fireman, however, proceeded to fill the tank with water, and the engineer got down from the engine and was engaged in oiling its various parts. While so engaged, the fireman returned from the tender to the cab, and opened the blow-off cock to clean out the boiler. It was customary for him to do this every day or two, when so directed by the engineer; the latter being the judge of when it was necessary and the fireman being under his orders. The plaintiff alleged in his petition, and testified on the stand, that on the day in question he had not told the fireman to blow out the engine, but had instructed him not to as it had been done the day before. The fireman swore that he had received instructions to do so. The blow-off cock is a large valve near the bottom of the boiler, designed for use in emptying the boiler of muddy water and sediment, and when open emits a large jet of steam and hot water. On the occasion in question, there was a steam pressure of 150 pounds to the square inch, a pressure sufficient for the operation of the engine. The valve was opened just as plaintiff was passing it. He was enveloped in steam. The steam and hot water was thrown against his leg, producing a deep burn from the lower part of his thigh to the calf of his leg. The force threw him off his feet. He was in fair health and in possession of normal senses up to the time of the accident. There is evidence sufficient to sustain the finding that the serious injury to his eyesight, the loss of hearing in his left ear, and his present inability to walk without crutches are due to the accident, and that his injuries are serious and permanent. He was earning at the time from $80 to $120 per month. The statute (Rev. St. 1895, art. 4560) defining who are fellow servants exempts the operatives of a railroad engine from the fellow-servant rule while they are engaged in their work. Defendant's contention that, under the facts of this case, the fireman and engineer were fellow servants at the moment of the accident, is rested upon the fact that the engine was at rest, and not in operation, and that each was engaged in preparing it for further operation.

Defendant seeks to apply to the facts of this case the rule announced in the case of Railway v. Howard, 97 Tex. 513, 80 S. W. 229. In that case the person injured was an engineer, who, when injured, was on his way to the engine for the purpose of taking charge of it. He had not been in charge of it. Two other employés under his general control and supervision negligently ran the engine against him, and killed him. It was held that the statutory exemption applied only when the employés were actually engaged in the extrahazardous work of operating the engine, and that one on his way to such work was not within its protection. The conclusion of the court was that deceased was a fellow servant of those in charge of the engine. Medberry v. Railway Co., 106 Wis....