M. P. R'y Co. v. Watts

Watts, J. Com. App. Undoubtedly the charge of the court upon the issue as to fellow-servants is not in accord with the generally received doctrine in this state. It is now settled that where employees serve the same master, labor under the same control, derive their authority and receive their compensation from the same gen [552] eral business, notwithstanding they may be of different grades, or operate in different and distinct departments of the common service, nevertheless they will be considered fellow-servants. Robinson v. H. & T. C. R’y Co., 46 Tex., 550; Dallas v. G., C. & S. F. R’y Co., 61 Tex., 202; H. & T. C. R’y Co. v. Rider, 4 Tex. L. Rev., 292; T. & P. R’y Co. v. Harrington, 5 Tex. L. Rev., 100. . As applicable to the facts of the case the court in substance instructed the jury that if the appellee was inexperienced as to the operation of the business upon the repair tracks, that it was then the duty of appellant to instruct him as to the rules and regulations respecting the same. This instruction is not correct. By seeking and accepting the service the appellee assumed all the risks incident to the emplojonent. It was not the duty of appellant to instruct him respecting the rules, regulations and usages by which the service was governed, unless asked for such information, unless the employee was known to be an inexperienced person in the business, and in its transaction subject to danger not open to his observation, known to the employer. For in accepting the employment he assumed to understand the service, and to be in every way competent to discharge the duty, unless in the contract of employment the appellant had assumed to instruct him with reference to his duty and the dangers incident to the service. Watson v. H. & T. C. R’y Co., 58 Tex., 438. Where the employee is engaged in a dangerous service, it is the duty of the master to use all reasonable and necessary means to protect him against any superadded danger that might be reasonably expected to arise from extrinsic causes. In such cases the greater the peril to the servant on account of the nature of the service, so also the greater the degree of care and prudence exacted of the master in protecting him against an increase of the danger arising from extrinsic causes. Wall v. T. & P. R’y Co., 4 Tex. L. Rev., 38. As presented by the record, it appears that this case was not tried and determined upon the real question involved. The real issue is as to whether or not the means provided by the company for protecting its employees engaged in repairing cars upon the repair tracks against danger arising from extrinsic causes, such as the use of these tracks in operating its engines, were reasonably sufficient to afford the protection. For having placed its servants at labor upon these repair tracks, it was incumbent upon the company to use due care in protecting them against danger arising from these extrinsic causes. If the jury should determine from the evidence that the degree of care used by appellant in this regard was reasonably sufficient, then no [553] recovery could be had against it for the injury. But if the jury should find from the evidence that the degree of care used was not reasonably sufficient, then the company would be liable for the damages resulting from the injury. As presented by the record there is no question as to the negligence of co-employees in the case. It appears that all who were there engaged fully discharged the respective duties allotted to them, and that none of them are chargeable with negligence. As before remarked, the real question is as to whether or not the company is chargeable with negligence in failing to use due care in protecting appellee against the danger. It is alleged and shown that at the time of the injury appellee was the servant of the Missouri, Kansas & Texas Railway Company. That company had previously leased the road and property of the International & Great Northern Railroad Company, and was in charge of, and operating, the same at the time of the injury. “ The lease of a railroad, under due authority of law, effects a transfer of rights and liabilities in its management, so that the corporation owning the railroad is discharged from responsibility for the lessee’s torts.” Pierce on Railroads, p. 283, and note 6. In accordance with that doctrine the International & Great Northern Railroad Company would not be liable to appellant for the damages arising from the injury. Our conclusion is that the court erred in the several particulars indicated, and that the judgment ought to be reversed and the cause remanded. Reveesed and eemanded. [Opinion adopted March 20, 1885.]