Texas & P. Ry. Co. v. Reed

• Citation: 31 S.W. 1058
• Parties: TEXAS & P. RY. CO. v. REED.
• Decision Date: 27 June 1895
• Court: Supreme Court of Texas

Page 1058

31 S.W. 1058

TEXAS & P. RY. CO. v. REED.

Supreme Court of Texas.

June 27, 1895.

Error to court of civil appeals of Fifth supreme judicial district.

Action by W. D. Reed against the Texas & Pacific Railway Company. There was a judgment of the court of civil appeals (___ S. W. ___) affirming a judgment for plaintiff, and defendant brings error. Reversed.

T. J. Freeman and Harris & Knight, for plaintiff in error. Wooten & Kimbrough, for defendant in error.

GAINES, C. J.

The defendant in error, while employed as a night switchman on plaintiff in error's yard at Toyah, a station on its line, was injured, and brought this action against the company to recover damages therefor. It was alleged that the accident was caused by the negligence of one Ed Moore, the night yard master or foreman of the defendant at the station mentioned, and that he had superintendence over the plaintiff, with the power to employ and discharge the servants subject to his control. Upon the occasion in question they were switching cars for the purpose of making up a train. It was in the nighttime, and it became necessary to bring a car from the side track over to the main track, and to propel it down the latter, so as to couple it to the caboose, which was standing there. It was down grade to the caboose. It was the foreman's duty to signal the engineer to "kick" the car down the track, and to uncouple it. It was the duty of the plaintiff to mount the car when it reached him, so as to control its motion, and to stop it in contact with the caboose, in order to couple them together. It was alleged, in substance, that the engineer set the car in motion with much force, and thereby started it down the track at a dangerous rate of speed, and that Moore, the foreman, was guilty of negligence in not giving him the signal to stop it, and in uncoupling the car when it was moving too rapidly; and there was evidence tending to prove the allegations. It was also alleged, and there was evidence tending to show, that when the car reached the plaintiff, he mounted it, and attempted to set the brake, but was unable to check its speed, and that it struck the caboose with such violence that he was thrown down upon the track, and thereby injured. The defendant company, in addition to a general denial, denied specially that the yard foreman, Moore, had authority to employ and discharge hands; and alleged that that authority was vested alone in the station agent at Toyah. It was also pleaded that the plaintiff was guilty of contributory negligence.

The first assignment of error urged in this court is that the court of civil appeals erred in sustaining the refusal of the trial court to give a special charge asked by the defendant, to the effect that, even if Moore had authority to employ and discharge the servants of the company who were subject to his control, yet the defendant would be liable only to the plaintiff for Moore's negligence with respect to his duty of employing and discharging hands, and not for his negligence in the performance of duties incumbent upon him merely as a colaborer with the plaintiff. A servant or agent of a railway company or other master or principal may occupy a dual relation to his coemployés. He may be charged with a duty, such as keeping a safe track, and furnishing safe machinery, from which his employer cannot absolve himself by imposing it upon a mere servant. For his neglect of such a duty, when such neglect results in an injury to his coemployé, his master is liable. But, on the other hand, he may have other duties to perform, not of the character named, in the performance of which he stands towards his coemployés merely as a fellow servant. For the neglect of such duties the latter cannot recover. Railway Co. v. Smith, 76 Tex. 611, 13 S. W. 562. The principle, however, is not applicable in the present case. In Railway Co. v. Williams, 75 Tex. 4, 12 S. W. 835, we were compelled by the former decisions of the court to hold that a foreman who has superintendence of and control over his coemployés, with power to employ and discharge them, was, as to them, a vice principal, and not a fellow servant; and in adopting the opinion of the commission of appeals in Railway Co. v. Smith, above cited, we took occasion to say that we were not prepared to depart from our former ruling, and that any expressions in the opinion which were in conflict with that ruling were not approved by us. The doctrine of the cases cited is that an employé who is empowered to employ and discharge other servants, who are subject to his superintendence and control, is not their fellow servant while they are working under him, and we therefore hold that it was not error to refuse the charge.

The court charged the jury in a general way that "every person is required to use ordinary and reasonable care and prudence to prevent injury to himself, and, if he fails to exercise such care and prudence, and in consequence of such failure he is injured, the injury being the result of his own negligence, he cannot recover for such injury." And also in other places charged in general terms that, if the plaintiff was guilty of contributory negligence, he could not recover. Counsel for the defendant asked the following special instruction: "You are instructed that it is the duty of an employé to use reasonable care to prevent injuries to himself while working for a master, and that the care to be exercised must be in proportion to the risks of the employment. You are further instructed that if an employé fails to use reasonable care to protect himself from injuries, he is guilty of negligence, and cannot recover. You are therefore instructed that if you find and believe from the evidence that the plaintiff herein, W. D. Reed, could, by the exercise of reasonable or ordinary care, have known or ascertained that the car which he attempted to ride down was going at a swift and dangerous rate of speed at the time he attempted to get on the same, and with knowledge of this he mounted said car, and was injured, then you will find for defendant." We are of opinion that the defendant was entitled to a charge on contributory negligence specially adapted to the facts of the case. The plaintiff himself testified that when the car, which had been set in motion, reached him, it was going at 10 or 12 miles per hour, and that he would have mounted it if it had been going 20. It would seem that, if the evidence was sufficient to...