Texas & Pacific Coal Co. v. Sherbley

• Decision Date: 15 May 1919
• Docket Number: (No. 938.)
• Citation: 212 S.W. 758
• Parties: TEXAS & PACIFIC COAL CO. v. SHERBLEY.
• Court: Texas Court of Appeals

212 S.W. 758

TEXAS & PACIFIC COAL CO. v. SHERBLEY.

(No. 938.)

Court of Civil Appeals of Texas. El Paso.

May 15, 1919.

Appeal from District Court, Palo Pinto County; J. B. Keith, Judge.

Action by Fred Sherbley against the Texas & Pacific Coal Company. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

W. J. Oxford, of Thurber, and Chandler & Pannill, of Stephenville, for appellant.

J. R. Stubblefield, of Eastland, and F. G. Morris, of El Paso, for appellee.

HARPER, C. J.

Appellee, Fred Sherbley, brought this suit against the Texas & Pacific Coal Company for damages for personal injuries sustained by him in the mines of appellant while in its employ as a motorman operating an electric car on an underground railway in the mine.

For cause or causes of action he alleged:

"That on November 23, 1916, he was operating the motorcar and in the act of transporting along said railroad a number of coal cars, to be distributed to the working places of the various miners; that there are a number of main lines of track, and a number of switches which branch off from said main lines; that defendant placed an employé, known as a trapper, at a point in the main lines to operate the switches to the end that the train of cars might pass on to the proper track for their destination; that on this particular occasion plaintiff was instructed by Mike Collie, an employé of defendant, to pull some empty cars along the straight past the eighth night entry; that the said trapper caused the switch to be so adjusted that, if the car had continued on the track, it would have gone into the said eighth entry, when it was his purpose not to do so; that the trapper negligently and carelessly turned the switch in the wrong manner, and negligently failed to notify plaintiff how same was turned, and thereby caused the wreck of the motorcar and plaintiff's injury; that it was the duty of defendant, in order to avoid injury to the plaintiff, to select competent, careful, and painstaking fellow workers, and to retain in its employ only such; that defendant negligently and carelessly selected an inexperienced, negligent, and careless trapper, and retained him in his employ; that it was the duty of defendant to properly light said mine, and that it failed to perform said duty; that, if it had been properly lighted, plaintiff might have discovered that the switch was turned wrong, and might have avoided injury; that the said trapper, who was by the defendant placed at the switch, at the eighth right entry by defendant, negligently and carelessly turned the switch in the wrong direction and thereby caused the wreck of the motor and consequent injuries to plaintiff."

The defendant answered by general and special exceptions, which were overruled by the court, general denial, assumed risk, contributory negligence, and intoxication of plaintiff.

Trial to a jury, cause submitted upon special issues, and upon the answers thereto judgment was entered for plaintiff for $10,000, from which this appeal.

It will be noted that three grounds of negligence are set up. The trial court submitted them in the following manner:

"(1) Was the defendant, through its employés or agents, `negligent' as that term has been heretofore defined, at the time and place the plaintiff was injured in turning the switch in the wrong manner, if it, or they, did so, and in failing to notify plaintiff as to how said switch was turned? Answer. Yes.

"(2) Was the defendant, through its employés or agents, `negligent' as that term has been hereinbefore defined, in selecting and retaining in its employment, if it did do so, an incompetent or inexperienced trapper, at the time and place which plaintiff alleges that he was injured? Answer: Yes.

"(3) Was the defendant, through its employés or agents, negligent as that term has been hereinbefore defined, at the time and place defendant was injured in failing, if it did so fail, to properly light its said mine? Answer: No."

First, appellant urges that the petition is subject to general demurrer, as to the first allegation of negligence, because it does not allege that an agent of the defendant acting within the scope of his employment negligently turned the switch. In support of this proposition the rule declared by Subdivision 4, art. 5246h, Vernon's Sayles' Tex. Statutes, is invoked as applicable to corporations amenable to the provisions of the Employers' Liability Act (Acts 33d Leg. c. 179 [Vernon's Sayles' Ann. Civ. St. 1914, arts. 5246h-5246-zzzz]), but not having qualified, which reads:

"In an action to recover damages for personal injuries sustained by an employé in the course of his employment, * * * it shall not be a defense: * * * Contributory negligence; * * * negligence of a fellow employé; * * * assumed risk.

"4. Provided, however, that in all such actions against an employer who is not a subscriber, as defined hereafter in this act, it shall be necessary to a recovery for plaintiff to prove negligence of such employer or some agent or servant of such employer, acting within the general scope of his employment."

It is alleged and proved that defendant was subject to the act and had not qualified. The allegations that "the defendant, its agents and servants, negligently," etc., "turned the switch," is sufficient upon general demurrer, but, if special exception had been directed to the pleadings pointing out that no particular servant was named, and the fact that there was no allegation that the person, employé, was acting within the scope of his employment in turning the switch, it should have been sustained. For that reason there was no error in permitting the proof that the person who operated the switch was an employé of defendant, and was acting within the scope of his employment in doing so. Nor is there any merit in the contention that the pleadings and evidence were insufficient to authorize the court to submit this as one of the grounds of negligence to the jury.

It is next urged in support of the general demurrer that the selection and employment of an inexperienced trapper is not a...