Texas & P. Ry. Co. v. Easton

• Decision Date: 23 February 1893
• Citation: 21 S.W. 575
• Parties: TEXAS & P. RY. CO. v. EASTON.
• Court: Texas Court of Appeals

21 S.W. 575

TEXAS & P. RY. CO. v. EASTON.

Court of Civil Appeals of Texas.

February 23, 1893.

Appeal from district court, Grayson county; P. B. Muse, Judge.

Action by W. M. Easton against the Texas & Pacific Railway Company for negligence. From a judgment for plaintiff, defendant appeals. Affirmed.

Head & Dillard, for appellant. A. B. Person and Stratton & Moseley, for appellee.

TARLTON, C. J.

Appellant prosecutes this appeal from a judgment rendered by the district court of Grayson county in favor of appellee. The suit is for damages on account of personal injuries sustained by the appellee.

Conclusions of Fact.

On February 12, 1889, appellee was in the employ, as an engineer, of H. C. Cross and George A. Eddy, receivers of the Missouri, Kansas & Texas Railway Company. He was operating a freight train of 19 cars on the line or track of railway between Whitesboro, in Grayson county, and Ft. Worth, in Tarrant county. This line of railway was the property of the Texas & Pacific Railway Company. By an arrangement between this company and the receivers of the Missouri, Kansas & Texas Railway Company, the precise character of which is not disclosed by the record, this line of railway, while exclusively owned by the Texas & Pacific Railway Company, was jointly used by the latter company and the receivers of the Missouri, Kansas & Texas Railway Company. The trains of the receivers, while on the joint track, were, by virtue of the arrangement referred to, operated under the orders of W. S. Polhemus, dispatcher and superintendent of the Texas & Pacific Railway Company. The appellee, on the day named, in charge of the train of the receivers of the Missouri, Kansas & Texas Railway Company, as already stated, had received orders from Mr. Polhemus to meet the Texas & Pacific train at Mingo, a station in Denton county, between the towns of Pilot Point and Denton. The engineer operating the latter train had likewise received orders to meet the Missouri, Kansas & Texas train operated by appellee at Mingo. The engineer in charge of the Texas & Pacific train violated the orders received by him, and hence, at a point about four miles north of Mingo, without fault on the part of appellee, and in spite of a diligent effort by him to avoid the catastrophe, and on account of the negligence of the engineer of the Texas & Pacific train, the trains collided, seriously injuring the appellee.

Conclusions of Law.

We are unable to approve the proposition of appellant that, under the facts above recited, (which were covered by the allegations in plaintiff's petition,) the appellee and the employe on appellant's train, to whose negligence the injuries in question are to be ascribed, were fellow servants. The relation of fellow servants imports that the persons affected thereby shall be "engaged in the employment of the same master, in the performance of a common work, and in the discharge of duties having in view the same general purpose." We do not think that, under the facts stated, the engineer of the Missouri, Kansas & Texas Railway Company was a fellow servant with the employes of the Texas & Pacific Railway Company, so as to prevent a recovery by him for injuries due to their negligence, though a joint track was used by the two companies. The fact that the plaintiff was subject to the orders of his masters, the receivers, and, by virtue thereof, to the control of the superintendent or dispatcher of the Texas & Pacific Railway Company, indicates that such superintendent was pro hac vice the representative of the receivers, rather than that the plaintiff was the servant of the Texas & Pacific...