Houston & Great Northern Railroad v. Miller , 51 Tex. 270 ( 1879 )

Bonner, Associate Justice.

This suit involves the question of the liability of the master at the suit of an employé, who was a minor, for damages sustained by reason of the alleged negligence of a fellow-servant; the liability of the master to the father of the minor, who was employed without-the consent of the father, having been considered by this-court in a branch of this same ease. (Railroad Co. v. Miller, 49 Tex., 322.)

Since the trial of the cause below, it has become the settled law of this court, in accordance with the well-established line of decisions in Great Britain and in this country, that the master is not liable for injuries sustained by his servant through the negligence or default of a fellow-servant. (Price v. Navigation Co., 46 Tex., 535; Robinson v. Railway Co., 46 Tex., 540.)

The plaintiff' was the employé of the defendant company, and his injuries are alleged to have been caused by the negligence of the engineer, who was a fellow-servant. Tested by the rule announced in the above cases, so much of the first subdivision of the charge of the court as authorized the jury to find for the plaintiff by reason of the alleged negligence of the engineer, was error, unless the fact that the plaintiff was a minor made his case an exception to this general rule.

The contract of a minor, made without the consent of his father, for necessaries, or for employment in a legitimate business by means of which necessaries could be obtained, is not void, but in many cases commendable. If fair and made in good faith, in the usual course of business, it would be valid until avoided by the minor himself, or by act of the parent in the exercise of his superior right to demand his services. To require that in such cases parties employing minors should be held thereby to be insurers against the risks usually incident to such employment, would virtually result, in many instances, in an undue restraint upon this important class of our citizens in obtaining the means of a legitimate livelihood, and would tend to promote idleness and consequent demoralization. We do not believe that, upon sound principles of public policy or authority, the mere fact that an employé is under the age of twenty-one years should shield him from the usual responsibility incident to an honest employment voluntarily assumed by himself. This rule, however, should not be enforced against a child of tender years, who evidently would not have the requisite discretion and experience to be a suitable employe in a dangerous business. (Railway Co. v. Elliott, 1 Cold., (Tenn.,) 619; Gartland v. Railway Co., 67 Ill., 498; King v. Railroad Corp., 9 Cush., 112; Railway Co. v. Harney, 28 Ind., 28; Railroad Co. v. Gladmon, 15 Wall., 401; Shear. & Red. on Neg., secs. 50, 97.)

• We are of opinion, then, that the error assigned upon this part of the first subdivision of the charge of the court was well taken.

We are further of opinion, that, under the facts as disclosed by the record, the court should have instructed the jury, in the event that they found for the plaintiff, that in estimating his damages “for his lessened capacity to make a living,” they should not compute thS time between the date of his injury and his arrival to the age of twenty-one years, as his father, Elisha P. Miller, had already recovered for this damage. The charge failed to call the attention of the jury to this, and they may have included in their estimate that damage, for which judgment had already been rendered against the defendant.

We think there was error in so much of the charge of the court in which the learned judge instructed the jury, that “if the evidence satisfies you that the plaintiff was an employé of defendant, and acting under the orders of the engineer, or other agent in charge of the train, and that whilst the train was in motion, and whilst plaintiff was not in sight, steam was put on, so as to cause a jerk and throw plaintiff on the track, whereby he was injured, such conduct would be negligence, for which defendant is liable.”

This, in effect, made the question of negligence one of law and not of fact, adverse to the opinion of this court in the subsequently decided case of Railroad Co. v. Murphy, 46 Tex., 856. In that case it was decided: “In the absence of law declaring an act to be negligence, it is a fact to be found by the jury on evidence, and ft is error to instruct a jury as to what acts constitute negligence, when the law is silent as to such acts.”

Judgment reversed and the cause remanded.

Keversed and remanded.