Texas & P. Ry. Co. v. Howard , 1918 Tex. App. LEXIS 107 ( 1918 )

Appellant insists that the deceased was not engaged in the performance of duty he owed to it as its division superintendent at the time he was injured, and that in going between the cars as he did, and assisting Core and Kelley in replacing the drawhead he was performing service outside of the scope of his employment, and that it therefore owed him no duty except the duty not to willfully injure him. The rule of law invoked has been stated as follows:

"If an employé quits the work assigned to him by his employer, and voluntarily undertakes to do work about which he had no duties to perform by virtue of the contractual relations existing between him and his employer, then, while such condition exists, the duty growing out of that relation of using care for his safety does not rest upon the employer." 4 Labatt's Master and Servant, § 1565.

As we view the testimony, if it did not appear therefrom as a matter of law that the rule invoked was inapplicable to the case, it presented a question as to whether the deceased was at the time acting within the scope of his employment or not, which should have been submitted, as it was, to the jury. There was no testimony showing what the deceased's duties were further than might be inferred from proof that he was superintendent of the division of appellant's line of railway, which included the place where the accident occurred, and as such had authority to direct train operatives and power to discharge them. From those facts we think the jury had a right to find that the deceased was acting within the scope of his employment when he went between the cars and remained there as he did. A "superintendent" is "one who superintends or has the oversight and charge of something, with the power of direction." Century Dictionary. We think the jury had a right to conclude that it was the deceased's duty, because he was "superintendent" of the division, to see to it that Core and Kelley without unnecessary delay properly replaced the drawhead, so that the train could be moved and the main line track cleared for another train shown to have been waiting to pass over it. If it was his duty to do that, he had a right, exercising proper care for his own safety, to go to the place from which he thought he could most effectively discharge the duty. As we see it, while the fact that he chose a place between the cars might be important in determining whether he was guilty of contributory negligence or not, it is of no importance in determining whether he was acting within the scope of his employment or not. If the deceased was performing duty he owed to appellant when he went between the cars to superintend the work Core and Kelley were engaged in doing, that he took hold of the drawhead and endeavored to assist them in replacing it, when it was not, it is insisted, his duty to do so, did not, we think, bring him within the rule invoked by appellant.

Appellant further insists that, if the deceased was not in the attitude of a volunteer or mere licensee, and it owed him a duty, under the circumstances of the case to use care to avoid injuring him, there was no testimony to support the finding that it did not use care. It appeared that the train was headed east, and consisted of about 20 cars. It was on the main line track, and was being moved by a switch engine, also headed east, coupled to its west end. The engineer in charge of the switch engine testified that he was directed by a signal from the switching crew to move the train east, the purpose being to get it out of the way of a work train waiting to pass it from the west. He said he tried to move the train east and could not, and thereupon pulled west 8 or 10 feet to "take slack" to get momentum sufficient to move the train when he reversed his engine and moved it east. He did not know, he said, that the drawhead pulled out when he moved the engine west, leaving part of the train on the east side of Hawkins street, but, believing that in moving west he had only taken up the slack in the train, and not having seen the signals to not move the train which Core and Kelley, the switchmen, testified they gave him, he moved the train east in obedience to the signal to him to so move it. Appellant's contention is based on the testimony of the engineer, just recited, that he had been signaled to move the train east and did not see the signals to him by Core and Kelley not to move the engine. His statement that he had been signaled to move east was directly contradicted by Core, who testified that the signal given the engineer was to move the train west, not east, and in effect by Kelley, who testified: "We were going west until we got on the switch, then going east again." Moreover, it appeared from the testimony that it was the duty of the engineer to look for signals, and, further, that, if he looked, he must have seen the signals Core and Kelley gave him to stop the engine. The jury were not bound to believe the engineer, but had a right to conclude from the fact that he had an interest in the controversy, and, from other circumstances shown by the testimony, that he saw the signals and ignored them. Knights of Maccabees v. Johnson, 143 S.W. 718; Railway Co. v. Tinon, 117 S.W. 936.

It is further insisted that it appeared from the evidence that the deceased in going and remaining between the cars as he did was guilty of contributory negligence, and therefore that the verdict of the jury was contrary to the evidence. We do not think it so appeared. The jury had a right to say that the deceased, when he reached the place of the accident and saw the part of the train to which the engine was attached standing still and Core and Kelley between the cars endeavoring to replace the drawhead, might very well have concluded, exercising proper care, that the engineer had been signaled not to move his engine and would obey the signal.

It is further insisted that the verdict is excessive. It appeared that the deceased at the time of his death was 57 years old; that his life expectancy was 15 1/2 years; that he was receiving a salary of $3,000 per annum; that he was a widower; that Mrs. Howard, a child then 10 years old, and a son then 27 years old, were his only children; that he was devoted to his daughter; and that he was a man of fine character and most exemplary habits. We do not think, in view of those facts, it should be held that the verdict was excessive.

Assignments presenting other objections than those discussed to the judgment are overruled, because we do not think any of them shows error requiring a reversal of the judgment.

The judgment is affirmed.