Texas & N. O. Ry. Co. v. McCraw

• Citation: 95 S.W. 82
• Parties: TEXAS & N. O. RY. CO. v. McCRAW.
• Decision Date: 16 May 1906
• Court: Texas Court of Appeals

95 S.W. 82

TEXAS & N. O. RY. CO. v. McCRAW.

Court of Civil Appeals of Texas.

May 16, 1906.

Rehearing Denied June 20, 1906.

Appeal from District Court, Jefferson County; W. H. Pope, Judge.

Action by John McCraw, by next friend, against the Texas & New Orleans Railway Company. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

Baker, Botts, Parker & Garwood and Chester & Chester, for appellant. Geo. D. Anderson and Oswald S. Parker, for appellee.

JAMES, C. J.

Appellee sued by next friend, and alleged that on or about February 21, 1903, he was a member of a gang of men in defendant's employ, whose duties, among other things, required them to operate a hand car to and from work on the track. That about 6 o'clock on the evening of said date they had been at work about two miles west of Beaumont, and in the performance of their duties it became necessary to replace the car on the track for the purpose of returning to the camp at Beaumont; that for this purpose plaintiff and the other servants composing the gang took hold of the car, which had been placed several feet away from the track, and, lifting same up, started to place it upon the track, but that after it was lifted certain of them suddenly and without warning to plaintiff negligently failed to sustain their share of the weight and allowed the strain of a large portion of the weight to come upon plaintiff, whereby he was seriously and permanently injured, which injury consisted of a rupture, whereby he has become unfit to follow his occupation as a laborer, and wholly unable to perform any manual labor without great pain and inconvenience and risk to his life and general health, etc. He asked for damages in the sum of $20,000. A verdict was returned for $3,000.

Defendant answered in substance (1) that the car was not being operated at the time, and the act complained of was that of plaintiff's fellow servants; (2) that it was a matter the risk of which was assumed; (3) that plaintiff was foreman of this gang at the time; (4) that plaintiff's injuries, if any, have been largely and materially contributed to by plaintiff by his failing to take proper care of himself, and by taking violent and dangerous exercise for one in the condition he claims to have been in. The only witness who testified to the circumstances of the occurrence was the appellee. He testified that the car was lying with its end toward the track, and there were three men on the far side. He was on the corner at the end next the track. The nearest end was four or five feet from the track. "Six of us picked the car up and made a step or two toward the track, and the men on my side gave way and let the weight of the car on me. In fact, they turned loose, and of course I could not hold the weight of it, and had to let go. When the weight came on me, I felt something break loose on the inside. They gave no warning that they were going to turn loose. After that we picked the car up and carried it on the track. I knew the weight came on me, and I had to let mine down, and they didn't have hold of it." The method of using the car was to take it out to the place of work, and pick it up and remove it from the track out of the way of trains; and it would be picked up and placed back on the track to return to camp, or to go to where there was other work to do. It was an everyday affair. It took 6 men to handle it in this way, and was a pretty good load for 6 men. One John Collopy was foreman of the whole gang, which consisted of about 35 or 40 men, all Mexicans except plaintiff and the assistant foreman, E. E. McCraw, and on that day Collopy had gone to Houston. E. E. McCraw had another gang at work elsewhere, and there was testimony that appellee was in charge of this gang as foreman. Appellee denied this relation, and testified that he was no other than a mere laborer like the others. It is not necessary for us to go minutely into the testimony. We find there was evidence in plaintiff's testimony to fairly support the verdict, in that the two persons working at plaintiff's side in carrying the hand car back to the track, appeared to have been negligent in releasing their hold, thereby suddenly and unexpectantly throwing excess of weight on plaintiff, causing him the injury complained of. There was evidence that would sustain such a finding, even after duly considering the circumstances cited by appellant to weaken the force and reliability of plaintiff's statement. It presented the issue of negligence sufficiently to make it necessary to be submitted to the jury. We might agree with appellant that if nothing had been disclosed but that additional weight was turned on plaintiff in the manual moving of the car, without some explanation of the manner by which this was occasioned, enough would not have appeared to prove negligence. But the fact that the two men lifting on the same side with plaintiff let go their hold at just that time tends to locate the act which threw the weight upon plaintiff, and shows it in the light of an act that was inconsistent with ordinary care. The case was allowed by defendant to go before the jury in this condition of the evidence. These remarks dispose also of the first proposition under the fifth assignment of error.

Under the second assignment appellant presents the following proposition: "An injury to a member of a crew engaged in lifting a hand car, resulting from unexplained failure of two members to support their portion of the weight, is an ordinary risk assumed, for which the master is not liable." What has been said above is relevant to this proposition and disposes of it. A negligent act, that cannot be anticipated by the injured party, is never the subject of assumed risk. The assignment under consideration is that the undisputed evidence shows that the injury resulted from a risk that was assumed by plaintiff, and we are unable, after consideration of the evidence, to sustain it.

In connection with plaintiff's third assignment of error we shall state how the court submitted the case to the jury. The court, in the main charge, assumed that the act in which this gang was engaged was in the course of the operation of the car, "if the jury found the defendant used in connection with the work a hand car for the purpose of transporting plaintiff and others to and from their work, and for the purpose of transporting tools and materials used in connection with such work, and the hand car with which plaintiff was working was being so used, and it became necessary to remove same from defendant's track, and to replace same on defendant's track, and that the plaintiff and the other employés with him were then engaged in replacing said hand car upon defendant's track." In a special charge asked by plaintiff's counsel the jury were told that the fellow servant act of 1897 (quoting article 4560f, Sayles' Rev. Civ. St.) applied to this case, and that if plaintiff was injured as alleged while in the employ of defendant, and while operating in conjunction with those with whom he was working one of defendant's hand cars, and that he was injured by the negligence of any other of the servants engaged at the time with him on the work of operating said hand car, then plaintiff could recover, regardless of whether or not he was a fellow servant with the other, and regardless of whether or not he was foreman of the gang. With this statement of the character of the charge we proceed to consider the propositions made by appellant under its third and eighth assignments.

Proposition 1: "A vice principal cannot recover damages occasioned him by the negligence of a servant while engaged with such vice principal in the performance of an act under his immediate supervision, management, and control." The merits of this proposition in a proper case need not be dealt with here. If the court was right in holding that under the facts of ...