C. J. Long v. Chicago, Rock Island & Texas Railway Company, 94 Tex. 53

GAINES, Chief Justice. This is an action brought by plaintiff in error to recover of the defendant in error damages for personal injuries alleged to have been inflicted upon him by the servants of the company. The case was tried before the court without a jury, and the judge filed his conclusions of fact and law and gave judgment for the defendant. The conclusions are as follows: “First. That on June 28, 1898, plaintiff was in the service of defendant as a

section hand. The

section of the road upon which plaintiff worked crossed the track of .the Missouri, Kansas & Texas Railway, there being a bridge on defendant’s road about 190 feet long at the place where it crossed the track of the Missouri, Kansas & Texas Railway, and this bridge at the point where it passed over the Missouri, Kansas & Texas Railway track was about twenty-five feet above the Missouri, Kansas & Texas Railway track, that is, from the rail on defendant’s track to the ground was about twenty-five feet. About twenty other

section men were at work with plaintiff on said

section on that day. It was the custom of all the

section men and their foreman who worked on said

section to meet at the tool house, which is about 246 yards north of said bridge, at the beginning of each day’s work, to procure the tools with which they worked. It was also their custom to return to said tool house and place their tools therein at the close of each day’s work. The work of each day began and closed at the tool house. On the day above mentioned, at the hour to quit work and return their tools to the tool house, plaintiff and others of the

section men started north towards the tool house carrying the tools with which they had worked. Before reaching the bridge they met a hand car used on said

section going south to get some tools to carry back to the tool house. This car was being operated by some of the

section men whom the foreman had directed to go after the things. This hand car upon returning, on its way to the tool house, overtook plaintiff and two other of the

section men while they were on the bridge walking towards the tool house, carrying their tools. It was running at a speed of about eight miles an hour. The other two managed to step onto the ends of the cross ties outside the rails before the car struck them, but plaintiff failed to do this and was run over by said hand car at the point on defendant's track just above the track of the Missouri, Kansas & Texas Railway and was run over by said hand car and injured.

I find that the men operating the hand car were negligent in running upon plaintiff, and that plaintiff. did not contribute to his injury by any negligence upon his part; and I find that plaintiff sustained damage to the amount of $1000. Yet I render judgment for defendant, because I conclude that the plaintiff and the

section men operating said hand car were fellow servants, and I further find that plaintiff was not engaged in operating the trains, cars, or locomotives of defendant. “The above finding as to the amount of plaintiff's damage is not made at the request of plaintiff, but is made over his objection.” The case having been appealed to the Court of Civil Appeals, the conclusions of fact and law were adopted by that court and the judgment was affirmed.

The trial court’s conclusion that the servants upon the hand car whose negligence caused the injury, were the fellow servants of the plaintiff, was assigned as error in the Court of Civil Appeals and is assigned in this court. That, according to the rulings of this court, these employes would have been fellow servants at common law, there can be no question. But the common law in regard to fellow servants has been changed by statute in this State. The Legislature has passed three acts upon the subject, each of which has had the effect of placing restrictions upon the rule.

The first was approved March 10, 1891, and in so far as it bears upon the question before us, it reads as follows: “See. 2.

That all persons who are engaged, in the common service of such railway corporations and who, while so engaged, are working together at the same time and place to a common purpose, of same grade, neither of such persons being intrusted by such corporations with any superintendence or control over their fellow employes, are fellow servants with each other; provided, that nothing herein contained shall be so construed as to make employes of such corporation, in the service of such corporation, fellow servants with other employes of such corporation, engaged in any other department or service of such corporation.

Employes who do not come within the provisions of this

section shall not be considered fellow servants.” The second

section of the act approved May 4, 1893, seems merely to have extended the benefits of the

section just quoted to the employes of the receivers, managers, or persons in control of railways. The Act of June 18, 1897, makes more sweeping changes. The first

section excludes all persons “engaged in the work of operating the cars, locomotives, or trains” of a railroad company from the rule of fellow servants.

Section 3 is a substitute for

section 2 of the previous act, and is as follows: “All persons who are engaged in the common service of such person, receiver, or corporation, controlling or operating a railroad or street railway, and who while so employed are in the same grade of employment and are doing the -same character of work or service and are working together at the same time and place and at the same piece of work and to a common purpose, are fellow servants with each other. Employes who do not come within the provisions of this

section shall not be considered fellow servants.” The additional limitations placed upon the rule by the language1 just quoted are two: First, the employes must be doing the same character of work; and, second, they must be working at the same piece of work. In determining this case, we may concede for the sake of the argument that the men who were engaged in carrying in the tools at the time the accident occurred were working together at the same time and place and to a common purpose. They were clearly of the same grade of employment.

The questions then to be determined are: Were the men who were operating the hand car and the plaintiff engaged in the same character of work; and, were they engaged .in the same piece of work, within the meaning of the statute? Neither the meaning of the terms, “character of work,” nor that of the words, “same piece of work,” is at all clear. In a very broad general sense, all ordinary laborers doing work which requires no especial skill may be said to be engaged in work of the same character.

On the other hand, employing the word in a very restricted sense, the man who holds the spike may be said to be engaged in a different character of work from that of the servant who drives it. It would seem that the former meaning is too general while the latter is probably too restricted. So, too, with the term “piece of work.” In a general sense, changing the rails upon the same part of a railroad track is the same “piece of work.” In a limited sense, the handling of the rails and the driving of a spike is a different piece of work.

When applied to the complicated constructions and repairs incident to the business of railroads, terms more indefinite could hardly have been found. We must therefore forbear the attempt to lay down any general rule to be followed in their construction and application and content ourselves with the endeavor to apply them to the particular facts of this case. The work immediately at hand when the injury was inflicted was the carrying of the tools to a place of safety.

For the accomplishment of this purpose, some of the employes (including those through whose negligence the injury was inflicted) were using a hand car, while others, including the plaintiff, were merely carrying them in by hand. The means employed by the former were so distinctly different from those in use by the latter that we are of opinion that they were engaged in a different character of work within the meaning of the statute. FTor do we think that it can be said that at the very time of the accident, the plaintiff and those operating the hand car were doing the same piece of work.

If the injury had been inflicted' by one of the employes working the hand car upon another who was then engaged in operating the same car, it should be held that they were engaged upon the same piece of work. But it would seem that each employe who was carrying one or more tools without the aid of another was engaged in a different piece of work from that which was being done by any one of his coemployes. Our conclusion is that the court erred in holding that the servants Jipon the hand car were fellow servants with the plaintiff, and therefore the judgment must be reversed.

When the facts have been- found by the trial judge, it is the ordinary rule, in case the judgment be reversed, to render judgment upon the facts. But in this case the plaintiff in error assigned in the Court of Civil Appeals that the trial court erred as to the amount of damages. The Court of Civil Appeals having concurred with the trial court in holding that the plaintiff was not entitled to recover, expressly declined to pass upon the question as to the amount of the damages.

We are of opinion that we ought not to accept the finding of the trial judge as an established fact and to render judgment accordingly, in the absence of at least an implied approval of that finding by the appellate court. For this reason, we think the cause ought to be remanded for a new trial. Accordingly, the judgment of the District Court and that of the Court of Civil Appeals are reversed and the cause remanded. Reversed and remanded.