Texas & P. Ry. Co. v. Crown

Decision Date22 April 1949
Docket NumberNo. 2724.,2724.
Citation220 S.W.2d 294
PartiesTEXAS & P. RY. CO. v. CROWN.
CourtTexas Court of Appeals

Appeal from District Court, Taylor County; J. R. Black, Judge.

Action by Pete Crown against the Texas & Pacific Railway Company to recover for injuries. From a judgment for plaintiff for $50,000, the defendant appeals.

Judgment reformed by reducing verdict to $38,500 after remittitur of $12,500 by plaintiff.

Wagstaff, Harwell, Wagstaff & Alvis, of Abilene, for appellant.

Smith & Smith, of Anson, and Scarborough, Yates, Scarborough & Black, of Abilene, for appellee.

GRISSON, Chief Justice.

In January, 1941, Pete Crown was traveling from his home in Fayetteville, Arkansas to Tucson, Arizona. He climbed on a box car of a Texas and Pacific Railway Company train moving westward out of the station at Monahans. He rode on the car for a few hundred yards and as he reached the top of a box car, according to his allegations and testimony, said company's rear brakeman cursed him, told him to get off and kicked him in the face, causing him to fall from the car and the wheels of the train to run over both of his legs, necessitating the amputation of one leg four inches below the knee and the other seven and one-half inches below the knee. He sued the railway company for damages and obtained a judgment for $50,000. The Railway Company has appealed.

The jury found (1) that as Crown was climbing aboard a freight train an employee of defendant kicked him; (2) that said employee was then acting within the scope of his employment; (3) that such act of defendant's employee was negligence; and (4) a proximate cause of Crown's injury; and, (8) that $50,000 would fairly and reasonably compensate Crown for the injury so sustained. Appellant's first four points assert (1) there was no evidence defendant's brakeman was acting within the scope of his employment when he kicked Crown; (2) that the undisputed evidence shows the brakeman was not acting within the scope of his employment; (3) that the court erred in submitting such issue to the jury, because the evidence was insufficient to warrant its submission; and, (4) that the answer to issue 2, that appellant's brakeman was acting within the scope of his employment when he kicked Crown, is contrary to and not supported by the evidence.

It is undisputed that Pete Crown was on the box car and that he fell from it and his legs were mangled by the wheels of the train, necessitating their amputation. The appellee and Jack Winkle, who was also a trespasser on the train, testified that Pete Crown was knocked off the car by a "brakeman on the train." G. W. Carpenter testified that he was in business a short distance from the scene of the accident and was the first person to reach Pete Crown after the accident; that he reached Crown within two minutes after his injury; that Crown had a skinned place on his cheek; that his legs were cut off and Crown then told him that a man kicked him off the train and he would remember his face in hell. Crown identified appellant's rear brakeman as the man who kicked him off the train. There was evidence that immediately after his injury, Crown said a brakeman kicked him off the train. It is undisputed that Mr. Crowder was defendant's rear brakeman on said train. He testified that his place on the train was ordinarily in the caboose on the back of the train. Appellee identified Crowder as the person who knocked him from the train. The train crew testified that Mr. Crowder, two other brakemen and the engineer and fireman were at said time in the cab of the engine; that they left the conductor at the station and were going west to the yard to leave some empty cars. Jack Winkle testified that he was on the car next to the one Pete Crown was riding; that "a brakeman on the train" kicked Pete Crown; that said brakeman had been on the train since "we left Big Spring and had been acting as a brakeman." He was asked whether the party who kicked Pete Crown "was a brakeman on the Texas and Pacific train that the young man had climbed upon." He answered: "Yes, I am sure that he was." He testified he heard the brakeman "bawling Pete Crown out," saw him strike Pete Crown and saw Crown fall and get his legs cut off; that immediately afterward Pete Crown was saying the brakeman kicked him off. He testified that before Pete Crown was struck he saw this brakeman walking back from the engine on top of the train; that after Pete Crown was kicked off the train he saw the brakeman go between the two cars where Pete Crown fell. Although the testimony that said brakeman was the man who knocked Pete Crown from the car is vigorously denied, that was clearly a question of fact and the jury has determined it against appellant.

Perhaps, the principal question to be decided is whether there is sufficient evidence to sustain the finding that defendant's brakeman was acting within the scope of his employment when he knocked appellee from the train. The rear brakeman, who was convicted by the jury of kicking Pete Crown off the car, testified, among other things, relative to whether he was then acting within the scope of his employment, as follows:

"Q. Now, you customarily have some guys that ride on your freight trains for free, don't you? A. Sure.

"Q. You recognize the fact that they do ride there, and know it, don't you; you know that don't you? A. I know they are people riding.

"Q. And it is part of your duties, as brakeman for the Railroad to keep some of those guys off of there, isn't it? A. We tell them to, yes, sir.

"Q. In other words, to safeguard the railroad property and the stuff that you are hauling, why there are times when you make those hobos, as you call them, get off of the train; that's right? A. Yes, sir.

"Q. And that comes under the head of being a part of your duties? A. Yes; usually we tell them to stay off.

"Q. And you are supposed to do that, aren't you? A. Yes, sir."

A railway brakeman has no implied authority to eject a trespasser from his train. 35 Tex.Jur. 644. Such authority is usually possessed by the conductor, but, no conductor was on the train when Crown was injured. The burden was upon appellee to show that when the brakeman kicked him off the train he was acting within the scope of his employment. He had the burden of showing that the brakeman was acting in furtherance of his master's business and for the accomplishment of the object for which he was employed.

"To hold the master liable for the act of his servant, it is not necessary that the servant should have authority to do the particular act. The act of the servant may be contrary of his express orders, and yet the master may be liable. But the act must be done within the scope of the general authority of the servant.

* * * * * *

"For the mode in which the servant performs the duty he is engaged to perform, if wrongful, and to the injury of another, the master is liable, although he may have expressly forbidden the particular act." International & G. N. R. Co. v. Anderson, 82 Tex. 516, 17 S.W. 1039, 1040, 27 Am. St.Rep. 902. See also Texas & P. R. Co. v. Mother, 5 Tex.Civ.App. 87, 24 S.W. 79, writ ref.; Kansas City, M. & O. R. Co. v. Torres, Tex.Com.App., 57 S.W.2d 1099.

"While the determination of what conduct is within the scope of a servant's employment or authority is necessarily largely dependent on the facts and circumstances of the particular case, generally whatever is done by the employee in virtue of his employment and in furtherance of its ends is deemed to be within the scope of his employment." 57 C.J.S., Master and Servant, § 570, page 303.

"The question whether a servant was acting within the scope of his employment at the time of the injury complained of ordinarily is one of fact. The question whether a servant was acting within the scope of his employment at the time of the injury complained of may be a question of fact or of law. Where the evidence is conflicting or more than one inference can be drawn therefrom, it is for the jury to determine, under appropriate instructions from the court, whether the servant was acting within the scope of his employment at the time of the injury complained of." 57 C.J.S., Master and Servant, § 617, page 411.

"The term `course of employment' implies that the employee whose act is in question was rendering some service for the employer at the time the injury was suffered. But the particular act (in the sense of method of doing the work) need not have been impliedly authorized by the master.

"`To hold the master liable for the act of his servant, it is not necessary that the servant should have authority to do the particular act * * *. But the act must be done within the scope of the general authority of the servant. It must be done in furtherance of the master's business and for accomplishment of the object for which the servant is employed.'" 29 Tex.Jur. 132.

After most careful consideration of all the testimony relative to whether the brakeman was acting within the scope of his employment, we have concluded that the evidence is sufficient to make it a question for the determination of the jury. See Lowry v. Anderson-Berney Building Company, 139 Tex. 29, 33, 161 S.W.2d 459; Houston & T. C. R. Co. v. Rutherford, 94 Tex. 518, 521, 62 S.W. 1056; Texas Power & Light Co. v. Denson, 125 Tex. 383, 389, 81 S.W.2d 36; Sid Katz, Inc. v. Walsh & Burney, 142 Tex. 232, 237, 177 S.W.2d 49. Points one to five are overruled.

Appellant's fifth point is: "The Court erred in permitting the Plaintiff to prove by Plaintiff's brother, over the objections of the Defendant, what wages were paid carpenters in the vicinity of Avery, Oklahoma, for a period of from seven to ten years prior to the date of the trial, the evidence showing that the Plaintiff was a carpenter residing in the State of Arkansas, and that he was injured in Ward County, Texas, while on his way to the State of Arizona to...

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