Texas & Pacific Coal Co. v. Gibson

• Decision Date: 30 October 1915
• Docket Number: (No. 8256.)
• Citation: 180 S.W. 1134
• Parties: TEXAS & PACIFIC COAL CO. v. GIBSON.<SMALL><SUP>*</SUP></SMALL>
• Court: Texas Court of Appeals

180 S.W. 1134

TEXAS & PACIFIC COAL CO. v. GIBSON.^*

(No. 8256.)

Court of Civil Appeals of Texas. Ft. Worth.

October 30, 1915.

Rehearing Denied December 4, 1915.

Appeal from District Court, Erath County; W. J. Oxford, Judge.

Action by A. J. Gibson against the Texas & Pacific Coal Company. From a judgment for plaintiff, defendant appeals. Affirmed.

John W. Wray, of Ft. Worth, for appellant. J. R. Stubblefield, of Eastland, for appellee.

BUCK, J.

The appellee, plaintiff below, alleged in his petition that the defendant was extensively engaged in the mining of coal in shaft No. 1 in Erath county, Tex.; that in the performance of said work it was necessary to remove a great deal of rock, shale, and other waste matter from the said mine; that as a means of facilitating the work the defendant owned and operated a narrow gauge railroad, from the mouth of said shaft to the end of the dump, approximately 300 feet; that the said railroad consisted of ordinary cross-ties, with iron rails spiked thereon, and that cars having four wheels and a body were at the time of the plaintiff's injury being operated on the said railroad; that said cars were operated by means of a stationary engine propelled by steam; that there was a large drum on which was a steel cable, one end of which was attached to the said drum and the other attached to said cars, and a shive wheel which was attached to the said railroad and at the opposite end of said railroad from the stationary engine.

Plaintiff further alleged that he was an employé of defendant at the time of the injury, and while engaged in the operation of the said cars he was permanently injured on account of the negligence of the defendant; that the said injury consisted in the loss of one hand and the first, second, and third fingers on the other hand; that said injuries were inflicted while the plaintiff, without negligence on his part, was engaged in oiling the said shive wheel; that the engineer in charge of said stationary engine, without notice to the plaintiff, negligently and carelessly started the said engine, and placed said car in operation, and thereby injured the plaintiff.

Plaintiff further alleged that defendant owed him the duty "to employ and place in charge of the said engine a capable, competent, cautious, and prudent man; that the engineer, who was employed and placed in charge of said engine by the defendant was not a competent, cautious, or prudent engineer, and was reckless, and in this defendant was guilty of negligence, and the said negligence was the direct and proximate cause of plaintiff's injuries hereinafter complained of."

Defendant pleaded the general denial, special denials, contributory negligence, that if plaintiff was injured it was caused by the negligence of a fellow servant, and assumed risk.

The cause was submitted to the jury on special issues, and the jury found, first, that the engineer employed by the defendant to operate the stationary engine was not a competent engineer; second, that defendant was guilty of negligence in the selection of an incompetent engineer; third, that the shive wheel was not running at the time plaintiff began oiling the same, but that it was placed in motion while he was engaged in oiling it; fourth, that the engineer in charge of the engine was guilty of negligence in placing the machinery in operation under the circumstances and at the time he did; fifth, that plaintiff was not guilty of contributory negligence; and, sixth, that plaintiff was damaged in the sum of $15,000. Upon these findings by the jury the court rendered judgment for plaintiff in the sum of $15,000.

No question is presented as to the character and extent of plaintiff's injuries, nor to the amount of the verdict, if appellant under the facts is liable. Therefore there are presented for our consideration and determination the following questions: (1) Was defendant operating a "railroad" as contemplated under article 6640, Vernon's Sayles' Texas Civil Statutes, so as to make it liable for injuries resulting from the negligence of a fellow servant of the person injured? (2) If question No. 1 should be answered in the negative, are plaintiff's allegations sufficient, in the absence of even a general demurrer to the petition, to sustain a recovery on the ground that defendant was guilty of negligence in the employment of an incompetent engineer? (3) Does the evidence sustain the allegation, if admitted to be sufficient, of such negligence on the part of defendant in employing an incompetent engineer? And (4) does the evidence sustain the allegation of incompetency on the part of the engineer?

If the answers to questions 2, 3, and 4 should be in the affirmative, it then becomes immaterial as to whether or not the defendant was operating a "railroad" in the sense used in article 6640, supra.

In the case of Galveston Rope & Twine Co. v. Burkett, 2 Tex. Civ. App. 308, 21 S. W. 958, the following language is used:

"The first assignment of error is that the court erred in overruling the exception to the petition because of its omission to allege that appellant knew, or by the use of ordinary care could have known, of the incompetency of the servant from whose negligence it is alleged that appellee's injury resulted. The petition alleged that the act of employing a servant was done in a careless and negligent manner, and that in consequence thereof an incompetent servant was taken into appellant's service. This was not an abstract allegation that appellant was guilty of negligence, but a specification of the act complained of, and charged to have been done in a negligent manner. This we think was sufficient. To have alleged that appellant knew, or could have known, of the incompetency of the employé, would have been only a further definition of the negligence charged against it, and it would have been a repetition in other language of what was involved in the averment made."

In Pennsylvania Coal Co. v. Bowen, by the Supreme Court of Alabama, 159 Ala. 165, 49 South. 305, we find the following expression:

"The law is that in order to recover against the master, on account of the employment of incompetent servants, it must be shown that the master knew of the incompetency of said servant, or by the exercise of reasonable diligence could have ascertained that fact. 1 Labatt, Master and Servant, pp. 418, 419, § 193a; Bailey's Master's Liability for Injuries to Servants, pp. 48-50; 26 Cyc. 1298, 1299; First Nat. Bank v. Chandler, 144 Ala. 286, 308, 39 South. 822, 113 Am. St. Rep. 39. It is also laid down, as a general proposition, that the complainant must allege that the master knew of the incompetency, or by the exercise of reasonable care could have known; but it is not necessary that those exact words should be used. Under the general trend of our own and other decisions, we hold that the allegations in this complaint, that the `defendant violated its duty in this respect and negligently employed,' etc., are a sufficient compliance with this requirement. 26 Cyc. 1393, 1394; Galveston Rope & Twine Co. v. Burkett 21 S. W. 958."

In Pennsylvania Foundry & Mfg. Co. v. Probst, 114 Va. 264, 76 S. E. 323, the Supreme Court of Appeals of Virginia holds sufficient, even as against special exception, similar allegations. We think the allegations in plaintiff's petition as to this matter are sufficient, especially in the absence of even a general demurrer.

We now come to the question as to whether or not the evidence sustains the allegation of defendant's negligence in employing an engineer who was incompetent to perform the duties with which he was charged, and in passing upon this question, it would seem that we are justified in fixing the date of the engineer's employment by defendant in the capacity of an engineer as of the date of the accident, for though the evidence tends to show that Jackson, the engineer in question, had had some experience in running the engine operating this car, which experience according to different witnesses covered a period ranging from a few days to nine months, yet the evidence shows that immediately prior to this accident said Jackson had been employed in operating a dynamo, and that on the day of the accident he was withdrawn from his regular employment and put in charge of this hoisting engine. Mr. Wylie testified that he was in charge of No. 1 mine at the time of the accident, and that...