I. & G. N. R. R. Co. v. Roth

Opinion.— One of the most controlling questions presented on this appeal arises on. the fifth section or paragraph of the court’s charge, and its correctness or otherwise is distinctly presented by counter-charges which-were asked by defendant but refused. The charge complained of is as follows: “ 5. If the plaintiff was in the discharge of his ordinary duties under his employment by the defendant, and the injury was occasioned by the negligence of one of his co-employees, then if the said employee, from whose act such damage was caused, is shown to have been as careful as ordinary persons would be in such work, then the jury will find for the defendant.” As counter-proposition to this charge the defendant asked instructions, the purport of which was that the burden of proving the facts necessary to charge the defendant is on the plaintiff; said instructions were refused. The instructions asked to be given on this point, we think, are the law of the case. It is a well-established principle of law that for an injury resulting entirely from the negligence of a co-servant, no fault being imputable to the master- in his employment or retention, no liability exists on. his part. See Wood on Master and Servant, sec. 419, and authorities cited. Liability only attaches ■when the master is at fault, and in all cases the burden is upon the servant to show want of care on the part of the master in selecting the negligent or unskilful servant, as well as unskilfulness in the servant; and if it appears that the servant had, or ought to have had, the same knowledge of the servant’s incompetency that the master had, he cannot recover. Id.; H. & T. C. R’y Co. v. Willie, 53 Tex., 327; Price v. Navigation Co., 46 Tex., 535; Robinson v. Railway Co., id., 540; R. R. Co. v. Miller, 51 Tex., 274. We conclude that the judgment ought to be reversed and the cause remanded. Beveksed and eemanded.