Blair v. Jefferson & N. W. Ry. Co., 214 S.W. 936

214 S.W. 936 | Tex. App. | 1919

As the cause is to be remanded to the court below for a new trial, we will not comment on the testimony much further than to say that, had the jury found the facts to be in harmony with the statement above, we think they would have had a right to infer therefrom that the trainmen were, and that Blair, the deceased, was not, guilty of negligence on the occasion in question. If the jury would have had such a right, then, of course, the trial court erred when he instructed them as he did, unless it appeared as a matter of law that when the trainmen began to move cars on the spur track they ceased to be employés of appellee, and became instead, and while doing work on that track continued to be, employés of the oil company. If it had appeared from "undisputed evidence," as statements in the charge indicated the trial court thought it did, that in moving the cars the trainmen acted "for the sole use and benefit" of the oil company and in accordance with its instructions, it might not have been error had the court treated the trainmen as employé for the time being of the oil company, for whose conduct appellee was not responsible. But it did not so appear. On the contrary, it reasonably appeared that, while the oil company instructed the trainmen where to "spot" the cars to be placed on the spur track, it gave them no instructions whatever as to how the spotting should be done; and the movement of the cars was on appellee's own track, and, obviously, we think for the mutual benefit of appellee and the oil company, and not for the sole benefit of the latter company.

Notwithstanding the statements in the charge referred to, however, we gather from other statements therein that the trial court did not instruct the jury as he did because he thought it appeared that the trainmen were for the time being employés of the oil company, but because he thought they had a right to assume that the oil company would give such warning to its employés engaged in working on or about the spur track as would cause them to take all steps necessary to avoid injury to themselves by cars to be moved thereon. We do not agree that the trainmen had such a right as a matter of law. If the jury might have found, and we think they might, that the trainmen owed Blair the duty to discover and warn him they were going to do so, before they shunted the loaded car onto the spur track, certainly it should not be said that appellee was entitled as a matter of law to be excused from the consequences of a failure on their part to discharge the duty, merely because they expected the oil company to warn him. That the jury might have found that the trainmen owed Blair such a duty we think is reasonably clear. He was not a mere trespasser on appellee's track. One of the trainmen testified, in effect, that he knew it was the practice of the oil company to have its employés go on the track and pick up seed which had fallen thereon. We are not prepared to say that that testimony alone would not have supported a finding that appellee owed Blair a duty. But there was other testimony which tended, and perhaps more strongly, to show the existence of a duty on the part of the trainmen to Blair. From that testimony the jury had a right to say that the brakeman, Lockett, saw Blair and the superintendent get off the track as the empty car first shunted onto the track approached them, and saw them return to their work thereon after he stopped and set the car, and to say that the conductor, Peterson, was in a position where he could have seen, and (notwithstanding his statement to the contrary) that he did see, Blair and the superintendent at work on the track after the empty car was shunted to and stopped thereon, and before the loaded car was shunted against it. It cannot be doubted, we think, that if the trainmen knew that employés of the oil company were at work on the track, they owed such employés a duty to warn them before shunting the loaded car against the empty one as they did.

As we understand them, both McInerney v. Canal Co., 151 N.Y. 411,45 N.E. 848, and Campbell v. Railway Co., 92 Conn. 322, 102 A. 597, cited by appellee, are distinguishable from this case. The decision in the McInerney Case seems to have been predicated mainly on the conclusion the court reached that the men in charge of the switch engine were for the time being servants of the lumber company instead of the canal company; and in both that case and the Campbell Case there was no evidence tending to show that the switching crew knew that the plaintiff was in a position to be injured by the movement of the cars they were handling.

The judgment will be reversed, and the cause will be remanded for a new trial.