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next train? If so then a much larger force must be employed where a train is approaching than in a case where several hours would intervene, although in either event the extent of the injury to the track were the same. The adoption of such a rule would permit no allowance to be made between slight and extensive injuries to the track. The injury might be such that a few men could make the necessary repairs in a very short time, or be of so serious a nature that a large force would necessarily be employed for days. Then how could the company know what force would be required; should it anticipate slight, ordinary or severe damage to its track, and how and by whom should injuries thereto be classified? Then again the same rule could not be applied to all roads alike. Where the business of the road is large and many trains are daily running over the same, a much more strict rule and a larger force would necessarily be required than in a case where but few trains were running. It may be said that the duty must always be to employ a sufficient force to make the repairs within a reasonable time, in view of the nature of the injury and the business of the road, and that such questions must be submitted to a jury under proper instructions. This is the best answer the nature of the questions will admit of, although a dangerous one when we consider the claim made in this case that four men instead of three should have been employed. But the duty to promptly repair its track or to repair within a reasonable time, grows out of the duty to carry freight and passengers with promptness and dispatch. This is the contract obligation which the company enters into with its patrons, but which it has not entered into with its employees. As to them it may delay its trains, or it may stop them, temporarily or permanently, and the employee cannot complain or seek redress in damages in consequence thereof. Their claim if any would grow out of their contract relation with the company for employment, and would not be based upon a stoppage in the running of trains caused by delay in repairing the track, but for their wages to which they would be entitled, if employed for a definite period, whether trains were run with regularity or were not run at all. There could therefore be no such thing as a duty to the employees to repair within a reasonable time or to repair at all. The duty to them is to furnish a reasonably good and safe track, and if an injury occurred thereto to discover the same with reasonable diligence and promptly give due and timely notice thereof to its employees so that they might be protected from danger.

In what has been said we have had in mind an accidental damage to a track kept and maintained in a uniformly good state of repair, and not to one permitted to fall into an unsafe and dangerous condition. Whether a different rule would be applicable to such a state of affairs we are not called upon in the present case to determine. The declaration in this case does set forth that the train in 8 A. & E. R. Cas.-8

question was suffered "to run into the gap without giving the conductor or other officers in charge of said train any warning or signals of danger whatever." Whether this is sufficiently alleged in the declaration to enable the plaintiff to recover if proved may at least admit of serious doubt. But the evidence shows that signals were put out and observed by the engineer of the train, and that if he had obeyed the same, as the rules of the company required him to do, no injury to the plaintiff would have resulted. It was the negligence of the engineer of the plaintiff's train that caused the injury to him. This is not counted upon at all, and even if it were it would be the negligence of a fellow-servant for which the company would not be liable.

The judgment must be reversed with costs and a new trial or

dered.

The other justices concurred.

HOUSTON AND TEXAS CENTRAL RY. Co.

v.

JOE ALLEN MYERS.

(55 Texas Reports, 110. April 26, 1881.)

If one in the employ of a railway company, while in the discharge of his duty, is injured by the negligence or incompetency of his fellow servants, and it is made to appear that the company had not used reasonable care in selecting such fellow servants, or that, after being informed of their incompetency, It retained them in its service, it would be liable in damages for the injury sustained.

If one employed as a servant on a railroad, after having knowledge of the defective character of machinery which in his employment he uses, and, so using, is injured thereby, he cannot recover damages of the company for such injury.

See opinion for facts showing contributory negligence which precluded a recovery by a brakeman who was injured while engaged in coupling cars, while the fireman was acting as engineer in moving the train.

ERROR from Harris. Tried below before the Hon. James Masterson.

Joe Allen Myers, by his sister and next friend, Lou R. Myers, filed this suit against the Houston and Texas Central Ry. Co., on the 1st day of June, 1874, to recover of that company damages sustained by him, because of personal injuries received on the 17th day of September, 1873, while in the employment of said company as a brakeman.

The petition charged that he was hurt while endeavoring to couple à train, and that he was so hurt because the said company

had failed to furnish suitable links to make couplings, and because of the incompetency of the party who had charge of the engine at the time he was injured. The plaintiff also alleged that the company knew before and at the time he was injured of the incompetency of its servant, and with this knowledge retained him in their employment.

Plaintiff alleged that he was injured on the 17th day of September, 1873, at Manor station, on the line of defendant's road, in Travis County, Texas, while he, in his capacity as a brakenían, was endeavoring to couple cars; that the injury was caused by an incompetent person having charge of the engine, and who suddenly, and without giving any signal, backed the train upon him; that the incompetency of the person having charge of the engine was then known to defendant, but not to plaintiff; and that another cause of his injury was that he was compelled to use a short, bent and defective link that was furnished to him by defendant with which to make the coupling, and that he did not at the time, until it was too late, know that such link was defective, but that such defect was known to defendant before and at the time plaintiff attempted to use it; that defendant failed and refused to provide suitable links with which to make couplings; that in consequence of said injury he had been put to great expense, in the sum of $700 for medical attention and medicine; and for nursing, in the further sum of $750; that he had been injured and his hand destroyed for life; that he had suffered much physical pain, for all of which he claimed damages in the sum of $30,000; that said injury was caused by no fault or negligence on his part, but that his injury was wholly caused by the fault and negligence of the defendant, and prayed for citation, and, upon hearing, for judgment for damages claimed, together with costs and for general relief.

Defences filed were: general demurrer; general denial; and special answer, charging that if plaintiff was ever injured, it was by his own carelessness, and not by the fault, carelessness or negligence of defendant.

On August 11, 1874, the court made and caused to be entered the following order in substance:

"L. R. Myers, guardian of the minor, J. A. Myers, has leave to make herself party plaintiff and leave to amend.'

November 17, 1874, the plaintiff filed and amended petition, in substance, that his injury was caused by the gross carelessness and culpable negligence of defendant's servants; that they were totally incompetent, and that their incompetency was known to defendant before and at the time plaintiff was injured.

The case was tried on the 25th day of November, 1875, and resulted in a verdict and judgment in favor of appellee and against appellant for $10,000.

Geo. Goldthwaite and Baker & Botts, for appellant.

Collard & Field and Stuart & Barziza, for appellee, in support of their position that the company was liable for failing to furnish a proper link for coupling, and on account of the incompetency of the fireman who undertook to act as engineer, cited Houston & Texas C. Ry. Co. v. Dunham, 49 Tex. 181; G. N. R. R. Co. v. Doyle, id. 190; G., H. & S. A. R. R. Co. v. Dillahunty, decided by this court March 26, 1880, and reported in Texas Law Journal, June 2, 1880; 1 Redfield's Law of Ry., 4th ed., p. 518; Wharton on Neg., pp. 206-224; Gilman v. Easton R. Co., 10 Allen (Mass.), 236; Gilman v. E. R. Co., 13 Allen (Mass.), 441; Faulkner v. Erie R. R. Co., 49 Barb. (N. Y.) 327; Chicago & G. E. R. Co. v. Hornly, 28 Ind. 30, 31; Ford v. Fitchburg R. R., 10 Mass. 260; Snow v. Housatonic, 8 Allen (Mass.), 441; Hand v. Ver. & Can. R. R., 32 Vt. 473; Smith v. N. Y. & H. R. R. Co., 6 Duer, 225; Chicago R. R. Co. v. Lovett, 45 Ill. 197; Flike v. The B. & R. R. Co., 53 N. Y. 549; Harper v. St. Louis R. R., 47 Mo. 567; Saunry v. N. Y. Cent., 49 N. Y. 521; Greenleaf v. Ill. C. R. R. Co., 29 Iowa, 36-49; Gibson v. Pacific R. R., 46 Mo. 263.

They also contended that knowledge on the part of plaintiff that one of the links was defective, and that the train was not properly supplied with links, does not impair his right to recover, citing H. & G. N. R. R. Co. v. Randall, 50 Tex. 260; Brandon v. Man. Co., 51 Tex. 121; Greenleaf v. D. & Sioux City R. R. Co., 33 Iowa, 35; Krory v. Chicago R., 32 Iowa, 357; Snow v. Housatonic R. R., 8 Allen, 441; Keegan v. W. R. R. Co., 8 N. Y. 175; Chicago & A. R. v. Shannon, 43 Ill. 338; Greenleaf v. Ill. C. R. R. Co., 29 Iowa, 14.

WATTS, J. COM. APP.-By the pleadings the appellee sought a recovery upon the two grounds:

1st. That the injury was caused by the gross neglect and incompetency of his fellow servants, and that the company knew of their said incompetency before the injury, and did not discharge them, etc.

2d. That the injury was the direct cause of a defective coupling link that the company had furnished for use on its train, and that the company knew of the defect at and before the injury, but the defect was not known to him at the time.

As to the first branch of the case thus made, the principles of law necessary to be applied in the disposition thereof are well settled. In operating trains upon a railroad, the company is bound to use reasonable care in selecting the servants to perform the various and often hazardous duties necessary to that end; and that each servant thus engaged has the unquestioned right to rely upon, and expect, that the company will use such care in selecting his fellow servants. If the servant is injured, while in the discharge

of his duty, by the negligence or incompetency of his fellow servants, and it is made to appear that the company had not used reasonable care in selecting such fellow servants, or, after being informed of their incompetency, retained them in its service, the company would be liable to its servant for the injury resulting from the neglect or incompetency of such fellow servants.

The appellee in his petition claimed that the injury resulted from the gross neglect and incompetency of his fellow servants, and that the company knew of their incompetency before the injury.

He claims that the injury occurred while he was in the discharge of his duty as brakeman, attempting to couple the cars constituting the train; and that it was caused by the fact that the engineer was not on the engine, and that the same was being operated by the fireman who was incompetent for that business.

The testimony of appellee shows that the engineer operating the train was a good engineer, and competent for that business, and in this he is sustained by other evidence in the record; that the fireman was on the engine operating the same; that the engineer was not on the engine; that he, appellee, was trying to couple the cars with a defective link, when the fireman, without giving any signal, backed the engine rapidly upon him, and caught and mashed his hand between the cars. The other evidence in the record, and about which there is no conflict, shows that the engineer was standing on the ground near the engine, directing the fireman in its movement, and that the fireman was in this way operating the engine in making up the train; and that this was usual in switching.

Conceding that it was an act of negligence upon the part of the engineer to leave the engine in the hands of the fireman, to be operated by him, and that it was an act of negligence for the fireman to attempt to operate the same, still the testimony shows that the engineer selected by the company, and placed in charge of the engine, was a good and competent man for the business; and that this is the isolated act of negligence shown by the record upon his part. Neither is there any complaint but that the fireman was a good and competent man for the business for which he had been selected, and to which he had been assigned by the company.

If, as claimed by appellee, the injury was the direct result of negligence of the engineer and fireman, then he not only fails to show the use of reasonable care upon the part of the company in selecting and retaining such servants, but he affirmatively shows that the engineer is a good and competent man for the business. Upon clear and well-established principles of law, appellee could not recover for the injury on account of the neglect of his fellowservants, under the facts and circumstances of this case. See R.

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