Texas & P. Ry. Co. v. Williams

• Decision Date: 17 January 1918
• Docket Number: (No. 1783.)
• Citation: 200 S.W. 1149
• Parties: TEXAS & P. RY. CO. v. WILLIAMS.
• Court: Texas Court of Appeals

200 S.W. 1149

TEXAS & P. RY. CO. v. WILLIAMS.

(No. 1783.)

Court of Civil Appeals of Texas. Texarkana.

January 17, 1918.

Rehearing Denied January 31, 1918.

Appeal from District Court, Harrison County; H. T. Lyttleton, Judge.

Suit by W. W. Williams against the Texas & Pacific Railway Company. Judgment for plaintiff, and defendant appeals. Affirmed.

F. H. Prendergast, of Marshall, for appellant. S. P. Jones, of Marshall, and T. P. Harte, of Douglas, Ariz., for appellee.

HODGES, J.

This appeal is from a judgment in favor of the appellee for the sum of $12,000 as damages for personal injuries. The facts show that the appellant was operating a line of railroad running from a point in Louisiana into this state, and that the appellee was employed as a fireman on one of its freight trains. He was injured under substantially the following conditions: On December 10, 1914, the train with which the appellee was connected arrived at a small station in Louisiana called New Roads. It was necessary for the engine to take water at that point, and an elevated tank had been placed there by the railroad company for the purpose of supplying its trains with water. On this occasion the spout, or the appliance by which water was conveyed from the tank into the tender of the engine, had been knocked down, and it was necessary to replace it before the tender could be filled. Upon the arrival of the train the appellee and the engineer found Higginbotham, the pumper, and three other men engaged in making the necessary repairs. They were endeavoring, by means of a rope and pulley, to elevate the waterspout into its place. According to the testimony of the appellee he was requested by Higginbotham, and also by the engineer of the locomotive, to assist in the operation; that while Higginbotham and his assistants were holding the waterspout in position by means of the rope the appellee endeavored, under Higginbotham's directions, to push it in place. The timbers slipped off of the gooseneck on which they were resting; the rope with which they were suspended broke, causing the spout to fall and strike the appellee on the back of the head, producing the injuries of which he complains in this suit. He claims that his skull was fractured, and that he ultimately suffered partial paralysis in one of his feet.

In determining the rights of the appellee the trial court applied the doctrine of comparative negligence as authorized by the federal Employers' Liability Act, and gave a charge permitting a recovery by the appellee even if it were found that he was guilty of contributory negligence. That portion of the charge applying the federal statute forms the basis of a ground of assignments of error.

It is conceded that the train with which the appellee was connected was at the time of the injury engaged in interstate commerce; that it was hauling a train of cars from the state of Louisiana into the state of Texas. But it is contended that his employment was that of a fireman; that when he undertook to assist in repairing the water tank he abandoned his authorized employment and voluntarily entered upon another branch of service of the appellant which had no connection with interstate commerce and also was beyond the scope of his employment. Under the laws of Louisiana contributory negligence was a complete defense in suits of this character, and it is insisted that the rights of the plaintiff were governed by those laws. The important inquiry is, Was the appellee, when injured, performing duties within the scope of his employment? If he was, then it follows that he was still engaged in interstate commerce. It is true that under the evidence the appellee had been engaged by the appellant to perform only the duties of a fireman. But does it follow that under all circumstances a fireman is not expected to do something more than merely supply his engine with water and fuel? Emergencies might arise when as a member of a train crew he would be expected to perform a service not literally within the terms of a fireman's contract. For instance, a crew whose duty it is to operate a train is not employed to remove obstructions from the track; but a group of trainmen, upon discovering a small obstruction easily removed, would be expected to perform that service as an incident to the continued operation of their train. On the other hand, should the track become obstructed by a considerable slide of earth from an adjacent embankment requiring days to remove, a train crew would not be expected to undertake that service. Between those extremes there must be found many varying conditions in which the question of duty should be determined as an issue of fact. In this instance the evidence shows that it was a part of the fireman's duty to supply the engine with water, and that it was necessary to take water at that particular place in order that the train might proceed on its journey. Had the fireman, upon reaching the water tank, found some slight derangement about the waterspout which it was necessary to repair and which he could easily have adjusted, it would reasonably be regarded as his duty to make the required adjustments. The extent to which he would be expected to go in such instances must depend upon the facts of each particular case. At the time of the injury appellee was assisting in doing something necessary for the further operation of the train, and which required no extended delay. The jury had a right to conclude that he was performing a service incidental to his principal employment.

In the trial below the court required the jury to find, before returning a verdict for the appellee, that he was...