GAINES, Chief Justice.
This suit was brought by the plaintiff in error, for the benefit of herself and her minor children, against defendant in error, to recover damages for injuries resulting in the death of J. J. Culpepper, her husband and the father of her children. She recovered a judgment in the trial court, but upon appeal that judgment was reversed and the cause remanded by the Court of Civil Appeals. The latter court held that the trial judge should have instructed a verdict fm the defendant. It was alleged in the petition for the unit of error, that the decision of the Court of Civil Appeals practically settled the case, and such appearing to be the fact, the writ was granted, and the cause is now before us for disposition.
When the accident occurred which resulted in the death of Culpepper he was the engineer running a freight train of the defendant company, which was immediately followed by another train known as the second section. For the purpose of working on a hot box on the engine he stopped it over a cattle guard in a deep cut near a curve in the track; and while so working under the engine the train was struck by the rear section and injuries thereby inflicted which resulted in his death.
The ground upon which a recovery was sought was, that the conductor of the front tram was negligent in not putting out a brakeman to signal the rear section.
The collision occurred on the 5th day of November, 1892. while the act of March 10,1891, in relation to fellow-servants of railroad companies was in force. That act was repealed by that of May 4, 1893 (Laws 1893, p. 121), but the Court of Civil Appeals correctly held, as we think, that the repeal did not affect the question of liability in this case. They however held, also, that the evidence indisputably showed that under the rule established by the former statute the conductor and engineer were fellow-servants; .and it was upon this ground that they determined
that a verdict for the defendant should have been -directed. In the latter ruling we think they were in error.
So much of the act of 1891 as applies to the question under consideration, reads as follows:
“Section 1. That all persons engaged in the service of any railway corporations, foreign or domestic, doing business in this State, who are entrusted by such corporation with the authority of superintendence, control or command of other persons in the employ or service of'such corporation, or with the authority to direct any other employe in the performance of any duty of such employe, are vice-principals of such corporation, and are not fellow-servants with such employe.
“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 entrusted 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 testimony shows that under the rules of the defendant company, the conductor had general superintendence over the movements of the train and command of all the employes engaged in its operation; hut it also tended to show that when the safety of the train became involved the engineer was no longer subject to the absolute control of the conductor, but was empowered to act upon his own judgment. The written rule of the company as to the authority of these employes was' read in evidence and is as follows: “All trains will be run under the direction of conductors, except when their directions conflict with rules, or involve risks, in which case the engineer will be held equally responsible.” The contention seems to be, that whenever a risk became involved and the engineer saw proper to stop his train in order to avoid it, for the reason that he was not then subject to the control of the conductor, they became fellow-servants, and so remained as long as that state of affairs continued to exist. But, as we have previously intimated, we are of the opinion that this position cannot be maintained. Merely because, by reason of the engineer’s superior technical knowledge and skill in operating the machinery, it was not deemed advisable to empower the conductor to direct the action of the engineer in certain contingencies, it does not follow that the latter was not under the general superintendence and control of the former. The exception emphasizes the rule. Conceding that in case of danger the engineer has power to stop the train, does the conductor cease to have a general superintendence over the train, in case he sees proper to exercise that power? The conductor’s authority is not abrogated, but merely restricted for the occasion. Should danger arise and
•should the engineer refuse to act, would not the conductor have power to order him to act—that is to say, to direct him to take such action as the engineer should deem proper in order to avoid the danger?
The first section of the act quoted, in defining who are to be deemed vice-principals, uses the language “entrusted * * * with the superintendence, control or command over other persons,” etc. The second, in declaring who are to be considered fellow-servants, excepts those who •are “entrusted * * * with any superintendence, control and command,” etc.; and in our opinion makes it manifest, that the extent of the control is not to govern, in determining the question.
But again, in construing the statute in question, we should endeavor to ascertain the evil which the Legislature intended to remedy. At the time the act was passed the limits of the rule as to fellow-servants, as applied to the employes of railroad companies, were well defined by the decisions of this court. It was held that there were certain duties, such as providing safe tracks and safe machinery, employing careful and competent servants, and making reasonable regulations for the conduct of the business, which the companies could not devolve upon a mere servant .so as to absolve themselves from liability for the neglect of such employes. It was also held that one employe who had power to employ and ■discharge others, was, as to such others, the representative of the master ■and not their fellow-servant.
It was thought that the rule of fellow-servants was calculated to promote care among co-employes, and that upon this principle the doctrine had a reasonable foundation. But it was considered that, as to those who are under control of another who is invested with the power to employ and discharge them, the principle did not apply. Hence the exception which was made in such cases. In Railway v. Williams,
75
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GAINES, Chief Justice.
This suit was brought by the plaintiff in error, for the benefit of herself and her minor children, against defendant in error, to recover damages for injuries resulting in the death of J. J. Culpepper, her husband and the father of her children. She recovered a judgment in the trial court, but upon appeal that judgment was reversed and the cause remanded by the Court of Civil Appeals. The latter court held that the trial judge should have instructed a verdict fm the defendant. It was alleged in the petition for the unit of error, that the decision of the Court of Civil Appeals practically settled the case, and such appearing to be the fact, the writ was granted, and the cause is now before us for disposition.
When the accident occurred which resulted in the death of Culpepper he was the engineer running a freight train of the defendant company, which was immediately followed by another train known as the second section. For the purpose of working on a hot box on the engine he stopped it over a cattle guard in a deep cut near a curve in the track; and while so working under the engine the train was struck by the rear section and injuries thereby inflicted which resulted in his death.
The ground upon which a recovery was sought was, that the conductor of the front tram was negligent in not putting out a brakeman to signal the rear section.
The collision occurred on the 5th day of November, 1892. while the act of March 10,1891, in relation to fellow-servants of railroad companies was in force. That act was repealed by that of May 4, 1893 (Laws 1893, p. 121), but the Court of Civil Appeals correctly held, as we think, that the repeal did not affect the question of liability in this case. They however held, also, that the evidence indisputably showed that under the rule established by the former statute the conductor and engineer were fellow-servants; .and it was upon this ground that they determined
that a verdict for the defendant should have been -directed. In the latter ruling we think they were in error.
So much of the act of 1891 as applies to the question under consideration, reads as follows:
“Section 1. That all persons engaged in the service of any railway corporations, foreign or domestic, doing business in this State, who are entrusted by such corporation with the authority of superintendence, control or command of other persons in the employ or service of'such corporation, or with the authority to direct any other employe in the performance of any duty of such employe, are vice-principals of such corporation, and are not fellow-servants with such employe.
“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 entrusted 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 testimony shows that under the rules of the defendant company, the conductor had general superintendence over the movements of the train and command of all the employes engaged in its operation; hut it also tended to show that when the safety of the train became involved the engineer was no longer subject to the absolute control of the conductor, but was empowered to act upon his own judgment. The written rule of the company as to the authority of these employes was' read in evidence and is as follows: “All trains will be run under the direction of conductors, except when their directions conflict with rules, or involve risks, in which case the engineer will be held equally responsible.” The contention seems to be, that whenever a risk became involved and the engineer saw proper to stop his train in order to avoid it, for the reason that he was not then subject to the control of the conductor, they became fellow-servants, and so remained as long as that state of affairs continued to exist. But, as we have previously intimated, we are of the opinion that this position cannot be maintained. Merely because, by reason of the engineer’s superior technical knowledge and skill in operating the machinery, it was not deemed advisable to empower the conductor to direct the action of the engineer in certain contingencies, it does not follow that the latter was not under the general superintendence and control of the former. The exception emphasizes the rule. Conceding that in case of danger the engineer has power to stop the train, does the conductor cease to have a general superintendence over the train, in case he sees proper to exercise that power? The conductor’s authority is not abrogated, but merely restricted for the occasion. Should danger arise and
•should the engineer refuse to act, would not the conductor have power to order him to act—that is to say, to direct him to take such action as the engineer should deem proper in order to avoid the danger?
The first section of the act quoted, in defining who are to be deemed vice-principals, uses the language “entrusted * * * with the superintendence, control or command over other persons,” etc. The second, in declaring who are to be considered fellow-servants, excepts those who •are “entrusted * * * with any superintendence, control and command,” etc.; and in our opinion makes it manifest, that the extent of the control is not to govern, in determining the question.
But again, in construing the statute in question, we should endeavor to ascertain the evil which the Legislature intended to remedy. At the time the act was passed the limits of the rule as to fellow-servants, as applied to the employes of railroad companies, were well defined by the decisions of this court. It was held that there were certain duties, such as providing safe tracks and safe machinery, employing careful and competent servants, and making reasonable regulations for the conduct of the business, which the companies could not devolve upon a mere servant .so as to absolve themselves from liability for the neglect of such employes. It was also held that one employe who had power to employ and ■discharge others, was, as to such others, the representative of the master ■and not their fellow-servant.
It was thought that the rule of fellow-servants was calculated to promote care among co-employes, and that upon this principle the doctrine had a reasonable foundation. But it was considered that, as to those who are under control of another who is invested with the power to employ and discharge them, the principle did not apply. Hence the exception which was made in such cases. In Railway v. Williams,
75
Texas, 4, in speaking of a servant who was under another who had authority to employ and discharge him, it is said: “He may be presumed to exercise •an influence over a co-employe who did not employ and has no power to discharge him, calculated to promote care and vigilance on part of the latter, which he cannot or dare not exercise towards one who has the right to terminate his employment.” The same principle applies to some extent at least where one servant has any “superintendence, control or ■command” over another; and it would seem, that the statute was passed, in part at least, in furtherance of this principle and to extend the exception to all cases coming within the reason of such exception. If so, the conductor, having general supervision over the engineer throughout the trip, would, as we think, not be deemed under the statute the fellow-■servant of the latter. The engineer, though he has power to act upon •occasion independently of the conductor, is, in general, his subordinate, and under some degree of restraint by reason of the relation. The principle is that where one servant is subject to the control of another he is not to be expected to exercise the same degree of influence over his superior, in promoting care on part of the latter, as one may exercise over another where no such subordination exists.
It is true an employe in one relation may be the representative of the master, while in another he may be a mere fellow-servant with his co-employes. For example, if the foreman of a gang charged with the duty of preserving a safe track fail in the discharge of that duty, the company may be liable if another servant be injured as a result from such failure; while in respect to some other duties, the company wrould not be responsible to his co-employe for an injury brought about through his-negligence. But that principle, in our opinion, does not apply in this ease. The mere fact that upon the happening of some contingency the engineer may act independently of the conductor, does not, for the occasion, change the general relation of subordination existing between them. The conductor still has the general control, subject for the time to the engineer’s powrer to act upon his own judgment during the emergency. As soon as the danger is obviated the power of the conductor again comes into play. To hold, that because the conductor may temporarily be deprived of the power to control his subordinate the rule of the statute is not to apply, would be, in our opinion, to confine its operation withiñ limits which the Legislature did not intend to prescribe.
Since we conclude that the Court of Civil Appeals wras in error in holding that the trial court erred in its charge to the jury upon the-question whether or not the conductor and engineer wrere fellow-servants, it becomes necessary to consider the other assignments of error relied upon in the brief of counsel. There was evidence tending to show that it was the duty of Culpepper, when he determined to stop the train, to blow his whistle as a signal to the brakeman to take position, so as to-prevent a collision by another train, and that he failed to perform that duty. There was also testimony tending to establish that it wras the duty of the conductor, upon the stopping of the train, to see that the brakeman went back to signal the approaching train. Upon the question of contributory negligence the court charged the jury as follows: “Now the defendant alleges that the injury to said Culpepper was caused by his own negligence in stopping his train where he did, and in going under his engine when he did, knowing a train was following him, without giving the necessary signal to send back a flagman, and that his own negligence was the proximate and direct cause of the injuries that resulted in his death. Now if the deceased J. J. Culpepper’s own want of care in any degree contributed to the injuries complained of, then plaintiff cannot recover; that is, would the injury have happened if said Culpepper had exercised ordinary care. If it would not, plaintiff cannot recover, and you will find for defendant. If, however, you find that said Culpepper was guilty of negligence, yet if such negligence was not the direct and proximate cause of the injury, but that the injury was caused by the negligence of the conductor, and you find that said conductor was not a fellow-servant, but a vice-principal, then defendant company would be liable, and you wall so find.” This charge is subject to the same objection as that which was held erroneous by this court in the case of the Gulf, Colorado & Santa Fe Bailway Company v. Bowdand, 38
S. W. Rep., 756 (ante, p. 365). If the engineer was negligent in failing to blow the whistle, and but for that negligence the accident would not have happened—or, in other words, if that negligence contributed to the injury—his failure of duty was undoubtedly a proximate cause of the result, and he was not entitled to recover. Hence, to make a recovery dependent upon the question of proximate cause, submitted both in an affirmative and a negative form, served only to confuse and mislead the jury. The neglect of Culpepper, if neglect it was, was first in point of time, and if the conductor subsequently failed in his duty, his neglect was nearest the result; and the jury may have deemed that the proximate cause, and upon that ground have given a verdict for the plaintiff.
The Court of Civil Appeals seemed inclined to hold that the charge in question was erroneous; but concluded that the error, if any, was removed by certain special instructions given at the request of the defendant company. But we think that the special charges did not have the effect to cure the error in the general charge, and that for that error the judgment of the trial court should be reversed.
The judgment of the Court of Civil Appeals which reverses and remands the cause is accordingly affirmed, but the District Court is instructed to proceed upon a new trial in accordance with this opinion. The defendant in error will recover the costs of the appeal and the plaintiff in error those of the writ of error.
Judgment of Court of Civil Appeals reversing and remanding affirmed.