| Tex. | Jul 1, 1877
This suit was brought by appellant, to recover damages for an injury sustained by him while acting as brakeman on appellee’s train.
The charge of the court below is not in the record, and having been lost, cannot, it is said, be supplied. In the absence of anything to raise or justify a contrary inference, it must be presumed that the law applicable to the facts of the case was correctly given to the jury, and that their verdict was in accordance with the law as charged. It might, consequently, be well held, as appellee’s counsel ruges, that this presumption would justify, if it does not require, the affirmance of the judgment. Aside from this presumption in support of the judgment, we see nothing in the record to induce the conclusion that the verdict was not fully supported by the evidence, or that any error occurred in the trial of the case of which appellant has any just cause of complaint. If the injury he sustained was, in fact, occasioned by the fresh sand placed along the side of the track, there is no evidence tending to show that it was placed there by appellee, or by its officers having the general charge and management of its affairs, and whose acts are to be looked upon and regarded as the acts of appellee. If the sand was placed along the track by a mere fellow-servant, in the employ of appellee, appellant has no just cause of complaint. If its deposit along the side of the track was improper, unless it was done by the immediate or direct order of appellee, or had been improperly suffered by appellee to remain after having been notified of its being there, or after, by the exercise of reasonable diligence, it should have been known, it can only be regarded as the act of a fellow-servant, for which no action can be maintained by appellant against the company.
These remarks are equally applicable to the right insisted on by appellant, to recover, because one of the brakemen was put in charge of the train as conductor, and that too without an additional brakeman being put' in his place. To this assumption it may be answered, that it was not shown that
Such arrangements seem not to have been unusual with the train hands, and to have been for their mutual accommodation and advantage, and with their general concurrence and assent.
It is urged that the general rule which holds that a servant cannot recover damages from the master for an injury sustained by reason of the negligence of a fellow-servant, is not applicable hr this case, because the injury to appellant resulted from the negligence of the conductor, for the time being, to whose direction and control appellant was subjected. For a time, as says Judge Cooley, (Southern Law Review, April, 1876, p. 110,) a strong disposition was manifested in some of the courts to hold to this view. We, however, agree with him, “that the negligence of a servant"of one grade is as much one of the risks of the business, as the negligence of another; and it seems impossible, therefore, to hold that the servant contracts to run the risks of negligent acts or (omission on the part of one class of servants and not those of another class.”
This, it is believed, is now recognized as the sounder and best-approved rule, both on reason and authority. (Priestly v. Fowler, 3 Mees. & W., 1; Coon v. S. & U. R. R, 5 N.Y., 492" court="NY" date_filed="1851-12-05" href="https://app.midpage.ai/document/coon-v--the-syracuse-and-utica-railroad-co-3606168?utm_source=webapp" opinion_id="3606168">5 N. Y., 492; Warner v. Erie R. R. Co., 39 N.Y., 468" court="NY" date_filed="1868-09-05" href="https://app.midpage.ai/document/warner-v--erie-railway-co-3609521?utm_source=webapp" opinion_id="3609521">39 N. Y., 468; Columbus v. Arnold, 31 Ind., 174" court="Ind." date_filed="1869-05-15" href="https://app.midpage.ai/document/columbus--indianapolis-central-railway-co-v-arnold-7037991?utm_source=webapp" opinion_id="7037991">31 Ind., 174; Chicago v. Murphy, 53 Ill., 336" court="Ill." date_filed="1870-01-15" href="https://app.midpage.ai/document/chicago--alton-railroad-v-murphy-6953993?utm_source=webapp" opinion_id="6953993">53 Ill., 336; 6 Cush., 75; 32 Vt., 473" court="Vt." date_filed="1860-01-15" href="https://app.midpage.ai/document/hard-v-vermont--canada-railroad-6576825?utm_source=webapp" opinion_id="6576825">32 Vt., 473 ; 20 Md., 212" court="Md." date_filed="1863-10-28" href="https://app.midpage.ai/document/oconnell-v-baltimore--ohio-r-r-7891711?utm_source=webapp" opinion_id="7891711">20 Md., 212; 23 Penn., 384.)
Affirmed.