Malcolm G. Douglas v. Texas Mexican R'y Co., 63 Tex. 564

Watts, J. Com. App. This is a suit against a railway company by an employee to recover damages for an injury received while in the discharge of his duty. By sustaining the sixth and eighth special exceptions to the petition, the court evidently was of the opinion that appellant, by the allegations in the petition, had shown that his injuries had resulted from the negligence of a fellow-servant, and also by an accident in the regular course of his employment, the risks of which he had assumed in accepting the employment and entering the service.

It is alleged that appellant was injured by the negligence of the appellee, who was then present and acting in the person of its master mechanic. That the injury was the direct result of the use by him of a piece of timber furnished by the master mechanic, and which was being used by appellant according to the direction of the master mechanic. It is alleged that, as used, this piece of timber was an unsafe and dangerous appliance, and that this fact was not known to appellant, but could have been known to the master mechanic by the exercise of reasonable care.

With us the rule of fellow-servant embraces all grades and classes of servants engaged in the common employment. Dallas v. G., C. & S. F. R’y Co., 61 Tex., 196. Nevertheless, it is well settled that where a superintendent, agent or foreman is empowered to select, employ and discharge such servants as operate under him, he is bound to use the same care in protecting such servants from injury as is imposed upon the master, and for any failure in this respect, resulting injuriously to the servant, the master must respond. G., H. & S. A. R’y Co. v. Drew, 59 Tex., 11; Wall v. T. &. P. R’y Co., 4 Tex. L.

Rev., No. 3, p. 38.

It is also alleged that Sutcliffe, as master mechanic, and to whose orders appellant was subject, had full power and authority to select, employ and discharge those who operated in that department; and, also, that the danger in using the piece of timber, as directed by Sutcliffe, was not apparent to appellant from the position he had taken at the direction of Sutcliffe; that the means used by him, at the direction of Sutcliffe, were only dangerous because of the raised condition of one of the engines, which was unknown to him, but was known to Sutcliffe, or ought to have been known to him by the exercise of reasonable care.

From these allegations it would seem that a good cause of action was asserted against appellee; for, if these allegations are true, Sutcliffe must be considered the direct representative of the company, for whose negligence it would be responsible to the servants who were made subject to his control. G., H. & S. A. R’y Co. v. Sullivan, 5 Tex. L. Rev., No. 115. The existence of contributory negligence upon the part of the appellant is sufficiently negatived by the facts alleged. T. & P. R’y Co. v. Murphy, 46 Tex., 356.

In our opinion the court below erred in sustaining the general demurrer and sixth and eighth special exceptions to appellant’s petition. Our conclusion is that the judgment ought to be reversed and the cause remanded. Reversed and demanded. [Opinion adopted March 26, 1885.] Stayton, J., not sitting.