Texas & P. Ry. Co. v. Putman

• Decision Date: 04 May 1901
• Citation: 63 S.W. 910
• Parties: TEXAS & P. RY. CO. v. PUTMAN.
• Court: Texas Court of Appeals

63 S.W. 910

TEXAS & P. RY. CO. v. PUTMAN.

Court of Civil Appeals of Texas.

May 4, 1901.

Appeal from district court, Parker county; J. W. Patterson, Judge.

Action by E. Putman against the Texas & Pacific Railway Company. From a judgment for plaintiff, defendant appeals. Affirmed. Motion for rehearing overruled.

Bidwell & Stennis, for appellant. Harry W. Kuteman, for appellee.

CONNER, C. J.

Appellee, E. Putman, sued the appellant for damages caused by injuries caused to his minor son while acting as brakeman in appellant's service. It was alleged that the minor son was hurt by the negligence of the engineer handling the train on which the son was at work. Appellant interposed a general demurrer, general denial, and special plea to the effect that appellee consented to the employment of the son, and thereby, and also by special agreement, waived his right of recovery. The trial resulted in a judgment for appellee for the sum of $1,000, from which appeal has been prosecuted.

The principal question, presented in various forms, is, can a father who has consented and agreed to the employment of a minor son by a railway company recover for injuries inflicted upon such minor son by the negligence of the railway company? Appellant insists that in such case no right of recovery exists, and cites Railway Co. v. Redeker, 67 Tex. 190, 2 S. W. 527; Railroad Co. v. Miller, 49 Tex. 322; Railway Co. v. Carlton, 60 Tex. 397; Railway Co. v. Brick, 83 Tex. 526, 18 S. W. 947; Hamilton v. Railway Co., 54 Tex. 556; Railway Co. v. Evans, 16 Tex. Civ. App. 68, 41 S. W. 80; Railway Co. v. Vieno, 7 Tex. Civ. App. 347, 26 S. W. 230; and other cases. We think, however, that this case is clearly distinguishable from the cases cited. The cases named seem to sustain the proposition that the consent of the father will prevent a recovery for injury to a minor child where the ground of recovery alleged consists alone in the fact that the minor had been employed in a dangerous employment. In such case it is held necessary for the plaintiff to allege and prove that the employment was without the father's consent, and that the fact of minority was known to the employer. But in the case before us this is not the ground of recovery. The father does not seek to recover because the minor, without his consent, was placed in a dangerous employment, wherein he was injured; nor was such issue presented to the jury. On the contrary, the jury were instructed, in effect, that the consent of the father and of the minor to such minor's employment in the character of service in which he was engaged was a bar to the recovery for injuries arising out of the ordinary risks or dangers of his employment. Appellee's right of recovery was restricted to the question whether the alleged injuries had been inflicted by the negligence charged. The sufficiency of the evidence to support the verdict and judgment in this particular is not questioned, and in such case we feel no hesitancy in saying that the father cannot, by consenting to the employment of the minor, or in any other way, lawfully agree to exempt appellant or those in like situation from the consequences of injuries so inflicted. Such contracts we think certainly contrary to public policy and the spirit of our laws, as has been often held.

The amount of the judgment is not complained of, and the only other contention not disposed of in what we have said is that the court failed to submit the proper measure of damages. We think the charge submitted this issue in substantial compliance with the proposition of appellant under its assignment. The true measure is one of...