Texas & Pacific R'y Co. v. McClanahan

2 Posey 270 | Tex. Comm'n App. | 1880

Opinion.— No issue was made by the pleadings as to the ownership of, or control over, the train or particular car upon which it is claimed that appellee received the injury. Evidence was admitted without objection to the effect that the train was owned and operated by the Mo. Pac. P’y Co., and it was upon that supposed issue that the instructions were given that are here assigned as error. It is well settled that facts not alleged, although established by evidence, cannot form the basis of a decree or judgment. Hall v. Jackson, 3 Tex., 305.

Appellee was then the servant in the employment of the appellant as a section hand or laborer. As such his duty was to aid in repairing the track and loading cars with cross-ties, and in the discharge of this duty he was subject to the orders of the section boss; and while engaged in the discharge of these duties he was directed by appellant’s agents, to whose orders he was subject, to assist in loading this train with ties.

The relation of employer and employee did not exist as between the appellee and the Mo. Pac. E’y Co.; he was the servant of the appellant and working under his directions and orders. So long as this relation exists and he was laboring under the orders of appellant, the latter was bound to exercise reasonable care in selecting the place as well as the instrumentalities with which the business is prosecuted. Wood on Master and Servant, p. 680, etc. In the language of the text-writer, “the master is bound to the exercise of reasonable care in reference to all the appliances of the business, and is-bound to protect his servants from injury therefrom by reason of latent or, unseen defects, so far as human care and foresight can accomplish that result.” It appears the real cause of the injury was the defective car-brake, and that this defect could easily have been detected by an inspection. This, as appears from the evidence, was not such latent-defect as could not have been detected and remedied by the exercise of reasonable care. As shown by the evidence, the injuries were severe and disabilities resulting therefrom permanent; therefore it cannot be justly said that the verdict was excessive:

Affirmed.