118 S.W. 127 | Tex. | 1909
The defendant in error (plaintiff), a section hand in the service of plaintiff in error (defendant) had his foot mashed by the falling upon it of a steel rail which he and other section men, his co-employes, were carrying from a push car to put it in place upon the ground, and recovered the judgment before us for the resulting damages. The negligence on which the judgment is based was that of the coemployes in allowing the rail to fall. They were plainly his fellow servants, engaged in doing the same piece of work and he can not recover, unless he was hurt "while engaged in the work of operating" the car in such way as to bring his case within the provisions of the Act of June 18, 1897. (Batt's Statutes, 4560ea.)
The section men were engaged in building a temporary track in defendant's yards, and used the push car to bring rails to the place where they were to be laid from another part of the yards. The car was propelled by pushing. When the load of rails had been brought to the proper place, the men proceeded to take them, by hand, from the car and put them on the ground, and while plaintiff and several others were supporting an end of one of them, the others suddenly released their hold and allowed it to drop upon plaintiff's foot.
These are all the facts material to the question stated.
We think it quite clear that plaintiff was not hurt "while engaged in the work of operating" the car. The operation of the car had no more to do with the injury to him than if the rail had been lifted from a wagon or from the ground. In the case of Gulf, C. S.F.R.R. Co. v. Howard (
"If we consider the perilous position of men while actually engaged in the work of operating trains, and their attitude toward other employes whether upon the same trains or not, which renders it very difficult to protect themselves against the negligence of others, the discrimination appears to be just as a provision for such employes and their families if injured, and a wise policy tending to excite the diligence of their employers to procure safe and reliable persons to perform the work affecting the safety of train service. When such employe is not actually engaged in the work out of which the danger grows the reasons for the distinction between him and other employes cease, for there is no more reason why Howard, while walking upon the track, should be protected against the negligence of those who were upon the locomotive, than there would have been if he had been a section hand in the same situation and had suffered the same injuries by the negligence of those handling the locomotive."
In the case of Gulf, C. S.F. Ry. Co. v. Johnson (
The plaintiff has no cause of action and the judgment is reversed and judgment rendered for defendant.
Reversed and rendered.