No. 3018 | Tex. | Feb 10, 1891
This suit was brought by appellee to recover damages. His petition charges in substance that one Burkett had a contract with appellants to load wood upon their cars at different points along their right of way; that appellee was employed by said Burkett and was his servant; that appellants with their own servants were required to furnish and handle the cars for the transportation of the wood; that at the time of plaintiff’s injury the piles of wood to be loaded were lying at some distance from each other; that appellants, in order that the wood might be loaded more conveniently, divided their train into sections of one or two cars, placing them opposite to the piles of wood; that as fast as one car or two cars were loaded they were shoved down by hand to the caboose; that plaintiff was requested by the servants of the receivers to assist them in so pushing by hand two of the cars in order to form the train, and that while he was so doing he was injured by the negligence of appellants’ servants.
The petition charged that the assistance so rendered by appellee “ was necessary in order to expedite said Burkett’s business.”
The defendants filed a general demurrer to the petition, which was overruled by the court. They also pleaded, what they call in their brief, a special demurrer, but which is in fact a general demurrer argumentatively expressed.
In the case of Eason v. Railway, 65 Texas, 578, it was said that “where one having no interest in th‘e loading of a car, or in the carriage or deliver}' of passengers or freight, volunteers to assist in reference to such matters, and whilst thus engaged is injured, he stands in the same position as a regular employe engaged in the particular service, so far as any right of recovery for his injuries is concerned. But the case is different when the injured party was acting at the time in furtherance of his own or his master’s business.”
It is an uncontroverted fact that the plaintiff was injured by the negligence of one of the servants of the defendants whom he was engaged in assisting. Under the rule above announced he was not entitled to recover if he was assisting to move the cars as a mere volunteer.
If, on the other hand, he was engaged in expediting his master’s busi
If the petition had been specially excepted to upon the ground that it failed to state in what manner he was expediting the business of his employer the exception should have been sustained. In the absence of a special exception the petition was good, because it contained the allegation that his assistance was necessary to expedite his master’s business, and there was no error committed in overruling the general demurrer to it.
While the petition was sufficient to authorize proof by plaintiff that he was engaged in expediting the business of his employer, he totally failed to offer such evidence. The record before us shows that he acted as a mere volunteer. The court erred in charging the jury as if there was some evidence before them on that issue. Upon another trial if the evidence fails to show that plaintiff was, as he alleges, expediting the business of his employer, but shows that he was a mere volunteer, the only proper charge that the court can give will be a direction for a verdict in favor of the defendants.
The plaintiff was a minor when he was injured and when he filed his suit. The defendants pleaded a release by the plaintiff in consideration of their furnishing him with an artificial leg.
The defendants, under proper pleadings, should if plaintiff recovers be allowed the value of the artificial limb so furnished, but the release should not, under the circumstances of this case, be given any greater effect than that.
We do not think that the record shows any error in the other particulars complained of.
The judgment is reversed and the cause is remanded.
Reversed and remanded.
Motion for rehearing argued bjr Frost, Ethemdge é Dashiell.
Motion refused.