Texas & P. Ry. Co. v. Carlin

• Decision Date: 19 November 1901
• Docket Number: 1,048.
• Citation: 111 F. 777
• Parties: TEXAS & P. RY. CO. v. CARLIN.
• Court: U.S. Court of Appeals — Fifth Circuit

111 F. 777

TEXAS & P. RY. CO. v. CARLIN.

No. 1,048.

United States Court of Appeals, Fifth Circuit.

November 19, 1901

T. J Freeman, F. B. Stanley, M. A. Spoonts, and George Thompson for plaintiff in error.

E. C Orrick and J. C. Terrell, Jr., for defendant in error.

Before PARDEE, McCORMICK, and SHELBY, Circuit Judges.

SHELBY Circuit Judge.

This is an action for damages for personal injuries, brought by Michael Carlin, plaintiff, against the Texas & Pacific Railway Company, defendant. The petition alleged that the plaintiff was in the employ of the defendant as a member of what is known as the 'bridge gang,' and, while at work near where a bridge was being repaired, a train approached with great speed, and as it ran over the bridge a spike maul or heavy iron hammer, weighing six or eight pounds, with a handle attached to it, was caught by the train, and thrown against the plaintiff, injuring his leg so that it had to be amputated. The negligence of the company was charged in several ways, one being that the foreman of the bridge gang had failed to see and remove the maul from the bridge. The defendant's answer contained a general denial, and a plea that, if there were negligence, it was that of a fellow servant of the plaintiff, for which the defendant was not liable, and that the plaintiff was guilty of contributory negligence. The case was tried on these issues, and there was a verdict for the plaintiff for $6,000 damages, on which judgment was entered. A bill of exceptions was reserved by the defendant, and the case is brought here on writ of error.

The plaintiff in error contends that the trial court should have directed a verdict for the defendant. Several of the assignments of error are dependent on that contention, and they are discussed together in the arguments submitted.

In every jury trial there is a preliminary question for the court. The court must determine whether or not there is sufficient evidence upon which the jury could base a verdict for the plaintiff. If there is no evidence, or if it is such that, on a fair construction, it does not sustain the plaintiff's case, and that no fair inference to be drawn from it sustains it, the court should give the peremptory instruction. There is no good sense in permitting a verdict that it would be the duty of the court to set aside. But it is not the province of the court to weigh the evidence, and decide between conflicting statements of witnesses, or to decide what inference should be drawn from uncontradicted evidence, if different minds could fairly come to different conclusions from it. A question of negligence, dependent on evidence, should not be taken from the jury, except in cases where there is no material conflict, and where there is no room for different minds to draw different inferences from it. The question of negligence is one of law for the court, only when the facts are such that all reasonable men must draw the same conclusions from them. A case should not be withdrawn from the jury unless the conclusion follows as matter of law that no recovery can be had upon any view that can be properly taken of the facts the evidence tends to establish.

The plaintiff, Carlin, was one of several members of a bridge gang. Welsh was the foreman in charge and control of the gang. The foreman and gang had gone to the bridge on the defendant's railway to repair it. Ed. Carver, one of the gang, used an iron maul or hammer about ten inches long, weighing six or eight pounds, to drive spikes in the bridge. It had a wooden handle about three feet long. Welsh, the foreman, directed the plaintiff to sharpen a saw. Pursuing their work under the direction of the foreman, all the men left the bridge. Welsh alone remained on the bridge. It was his duty to see that the bridge was kept free from obstructions, so that trains could safely pass. Where Carver laid the maul when he left the bridge is not shown by direct evidence. Ten or fifteen minutes after he was using the maul, a train approached rapidly, and crossed the bridge. Welsh says he looked on the bridge, and saw no obstruction; that he did not see the maul. He stepped out of the way of the passing train. As the train passed, the plaintiff, who was more than 20 feet from the track, was seen to fall. His leg was broken so as to require amputation. Lying near him was the iron maul, with the handle freshly broken. The conclusion is irresistible that the cars in passing had struck the maul, breaking the handle, and hurling it against him.

One of the averments of negligence in the petition is that the company was negligent, in that Welsh, the foreman of the bridge gang, failed to see that the bridge was clear of obstructions, and in failing to detect the maul on the bridge, and in leaving it there to obstruct the bridge.

In the absence of a controlling statute, it may be conceded that Welsh, the foreman, and the plaintiff, a member of the bridge gang, would have been fellow servants, and Carlin would have had no cause of action against the company. McDonald v. Buckley (C.C.A.) 109 F. 290; Railroad Co. v. Conroy, 175 U.S. 323, 20 Sup.Ct. 85, 44 L.Ed. 181. But there are statutes in Texas applicable to the case. By these statutes, in a case like this, a servant or employe, who has the authority to direct any other employe in the performance of any duty of such employe, is a vice principal, and not a fellow servant. By the express terms of the statute, employes are not considered fellow servants unless they 'are in the same grade of employment, and are doing the same character of work or service, and are working together at the same time and place and at the same piece of work and to a common purpose. ' Sayles' Ann. Civ. St. Tex. 1897, arts. 4560f-4560h. The statutes are printed in the margin. ^[1]

It is clear on the proof that Welsh was in control and command of the plaintiff, and that they were not in the same grade of employment, nor at the time of the accident were they doing the same character or work or service. Under the Texas statute, according to its letter, or as construed by the Texas supreme court, they were not fellow servants. Long v. Railroad Co. (Tex. Sup.) 57 S.W. 802; Nix v. Railway Co. (Tex. Sup.) 18 S.W. 571. We must be controlled by these statutes and their construction by the Texas supreme court. Rev. St. U.S. Sec. 721; Railroad Co. v. Baugh, 149 U.S. 368, 13 Sup.Ct. 914, 37 L.Ed. 772. It follows that the company would be responsible to the plaintiff if he received the injuries from the negligence of Welsh.

The contention for the peremptory charge must be and is based on the idea that there is no proof of negligence on the part of Welsh. There is no conflict in the evidence that it was Welsh's duty to see that the bridge was not obstructed. He says he looked, and saw no obstruction. It is claimed that there is no evidence as to the location of the maul when the train reached the bridge; that there is no proof that it was in...