Texas & P. Ry. Co. v. Rogers

• Decision Date: 27 June 1893
• Docket Number: 120.
• Citation: 57 F. 378
• Parties: TEXAS & P. RY. CO. v. ROGERS.
• Court: U.S. Court of Appeals — Fifth Circuit

57 F. 378

TEXAS & P. RY. CO. v. ROGERS.

No. 120.

United States Court of Appeals, Fifth Circuit.

June 27, 1893

Statement by PARDEE, Circuit Judge:

Thomas G. Rogers, defendant in error, instituted his action against the Texas & Pacific Railway Company, plaintiff in error, in the court below, and in his original petition as to jurisdiction alleged as follows: 'Your petitioner, Thomas G. Rogers, who resides in Miller county, Ark., complaining of the Texas & Pacific Railway Company, a corporation created and existing by virtue of the laws of the state of Texas with an office and local agent at Jefferson, Tex., to wit one Charles E. Ide, respectfully represents,' etc. Afterwards he filed a second amended original petition, and therein alleged as follows: 'Now comes the plaintiff, and by leave of the court first had and obtained, and files this his second amended original petition, in lieu of his original petition filed on the 25th day of February, 1891, and his first amended original petition filed herein on the 14th day of September, 1891, and complaining of the defendant, the Texas & Pacific Railway Company, a corporation created and existing under and by virtue of the laws of the state of Texas, respectfully represents and shows to the court that heretofore, to wit, on or about the 22d of June, 1890, plaintiff was at work for said defendant company at and near Stawn, on the line of the defendant's railroad in Palo Pinto county, Tex., with what is known as the 'gang,' assisting in the building and repairing of bridges for said defendant company as a day laborer, and under the direction and control of one Lewis Sullivan, who was the acting foreman of the said bridge gang, and the agent of the said defendant company. That while so engaged at work, under the control and direction of the said foreman as aforesaid, and while attempting with others of the said gang to hoist from the ground below to the bridge above a large and heavy piece of bridge timber, plaintiff was knocked off the said bridge by the said timber, in consequence of the timber being so heavy that it could not be handled by the small number of men who were directed to raise the same, and in consequence of the further fact that there were no means of securing the said timber after one end thereof had been raised to the top of the bridge, and there were no such appliances as were necessary for the performance of the work at which this plaintiff and other persons were engaged at the time of the injury as aforesaid. That the force of hands employed at this work was also insufficient for the safety of this plaintiff and the other employes; and that the said foreman was unskilled and unfitted for the place; and that the defendant company was negligent in the failure to provide safe and suitable appliances for the performance of the work at which they were engaged at that time; and that, in consequence of the said negligence of the said defendant company in not providing a sufficient force and suitable appliances for the performance of the said work, and in the selection and employment of incompetent foreman to control and direct the same, the plaintiff was knocked off the high trestle or bridge, and suffered serious and painful and permanent injuries, mashing, bruising, and lacerating his leg, dislocating his ankle, and otherwise injuring this plaintiff, so that he was unable to walk or to move about without the use of crutches for kind of manual labor for the period of six months, after the said injury. Plaintiff further shows that said injuries also extended to his shoulder and back, and that he suffered great physical pain and mental anguish, and that his ability has been greatly impaired by the injuries complained of to make a living at his occupation or otherwise. That his said injuries were all caused as aforesaid by the said negligence, acts of omission and commission, hereinbefore complained of, and without fault or contribution on the part of the plaintiff. Plaintiff further shows to the court that, while the timber by which plaintiff was hurt was being hoisted to the top of the bridge as before stated, that there came in sight a train, and the foreman ordered the men at work on the timber to hurry up, as the train was coming; and that, while they were so attempting to get said timber out of the way of the train, the accident happened by which plaintiff was injured as aforesaid; and by reason of said injuries, and all occasioned by the said negligence of the said defendant, plaintiff has been damaged in, to wit, the full sum of ten thousand dollars as actual damages, and for this sum he prays judgment, as in his original petition.'

To the said second amended original petition, the defendant filed the following answer: 'Now comes the defendant in above cause and demurs to plaintiff's petition, and says same shows no cause of action. (2) Defendants deny each and every allegation in plaintiff's petition, and say they are not guilty of the wrongs charged against them. (3) Defendants say that the negligence, if any, that caused this injury to plaintiff, was the negligence of those persons working with plaintiff, and who were his fellow servants, and for whose negligence the defendant is not liable. (4) Defendants say that, if plaintiff ever had...