Texas & P. Ry. Co. v. Webb

• Decision Date: 28 February 1903
• Citation: 72 S.W. 1044
• Parties: TEXAS & P. RY. CO. v. WEBB.<SMALL><SUP>*</SUP></SMALL>
• Court: Texas Court of Appeals

72 S.W. 1044

TEXAS & P. RY. CO. v. WEBB.^*

Court of Civil Appeals of Texas.

February 28, 1903.

Appeal from District Court, Eastland County; N. R. Lindsey, Judge.

Action by C. P. Webb against the Texas & Pacific Railway Company. Judgment for plaintiff, and defendant appeals. Affirmed.

J. M. Wagstaff, for appellant. Ben M. Terrell, for appellee.

CONNER, C. J.

This is an appeal from a judgment of $2,000 in appellee's favor for personal injuries. The following facts are substantially alleged and proved by the uncontradicted testimony: Appellee was injured by the act of a fellow servant by the name of Greathouse, while in appellant's service, under the following circumstances: Appellant was operating a rock quarry at which laborers were at work quarrying and breaking rock in convenient sizes preparatory to loading the broken pieces upon a push car 8 or 10 feet long and 3 or 4 feet high, upon which, when loaded, the rock was transported down an inclined switch track of the usual kind to a rock crusher, used to crush rock with which to ballast appellant's main line. Appellee and Greathouse had nothing to do with quarrying and breaking the rock. It was their duty from opposite sides of the car to pick up the quarried and broken rock, and load the same upon the push car, which had a loading capacity of about 2,800 pounds, after which appellee and Greathouse were required, in the performance of their duty, to start and mount the car, and so use the brakes with which it was provided as to restrain the downward momentum within safe limits, and upon arrival at the crusher to unload and push the car back up the incline to the loading place, where they would proceed as before. Appellee was injured while loading by the negligent act of Greathouse in casting upon the car, and over onto appellee's foot, a sharp-pointed rock. It was alleged that such act was negligent, and inasmuch as no complaint is made of the manner in which this issue of negligence was submitted to the jury, or of the amount of the verdict, we need not notice such features of the case further. Appellee alleged that Greathouse was an incompetent workman, of a low order of intelligence, of which appellee was without knowledge, but of which appellant had notice, or by the exercise of reasonable prudence might have known, and that appellant was guilty of negligence in respect to his employment, and also alleged that appellee and Greathouse at the time of the injury were engaged in the work of operating the car, within the meaning of Rev. St. art. 4560f. Both of these grounds of recovery were submitted to the jury, which returned a general verdict for appellee.

Beginning with the assignments of error in reverse order, we have first to determine whether the push car, as above described, is a "car," within the meaning of the above article of the statute, and, if so, whether, within its purview, appellee at the time of his injury was engaged in "operating" it. In reaching the conclusion that it was a car, we have had no difficulty. Says Mr. Elliott, in his work on Railroads, vol. 3, § 1354: "The term `cars,' when employed in an employer's liability act, may be taken to mean any kind of a vehicle, other than a locomotive or tender, used by a railroad company for the transportation of passengers, employés, or property upon and along its tracks. The term is not confined to coaches nor to freight cars, but to embrace all kinds of cars. A hand car is a car, within the meaning of the statute." This statement, which we approve, is supported by Perez v. San Antonio & A. P. Ry. Co., 67 S. W. 137, by our court of Civil Appeals for the Fourth District, and Benson v. Ry. Co. (Minn.) 77 N. W. 798, 74 Am. St. Rep. 444, and Ry. Co. v. Crocker, 95 Ala. 412, 11 South. 262. Our statute which we hereinafter quote is not limited to cars of any particular description or capacity, or to those used in any particular kind of transportation, or moved by any particular kind of force. The push car under consideration was used solely in the transportation of freight or material for use by appellant, and is designated by all the witnesses as a car. We hence overrule appellant's contention in this particular.

But was appellee at the time of his injury engaged in the work of operating said push car? This is the difficult question in the case. For, if this question be answered in the affirmative, then appellee is, perforce of the statute, entitled to recover, regardless of the fact that he was injured by the negligence of a fellow servant, for which the master is generally not liable, and irrespective, also, of the issue of appellant's negligence, if any, in the employment of Greathouse. If otherwise, then the court was in error, as assigned, in submitting the issue of whether appellee was operating a car as alleged. The statute involved is as follows: "Every person, receiver, or corporation operating a railroad or street railway the line of which shall be situated in whole or in part in this state, shall be liable for all damages sustained by any servant or employee thereof while engaged in the work of operating the cars, locomotives or trains of such person, receiver or corporation, by reason of the negligence of any other servant or employee of such person, receiver or corporation, and the fact that such servants or employees were fellow servants with each other shall not impair or destroy such liability." Rev. St. art. 4560f. We have been unable to find any authority applicable to the precise facts now before us. In the case of Long v. C., R. I. & T. Ry. Co. (Tex. Sup.) 57 S. W. 803, a different article of the statute was construed; and an examination of the record in that case tends to show affirmatively that the Supreme Court was not called upon to decide whether in that case Long was at the time of his injury engaged in the work of...