G., C. & S. F. R'y v. Dorsey

2 Posey 247

• Court: Texas Commission of Appeals
• Decided: July 1, 1880
• Docket: No. 902
• Status: Published

Opinion

Opinion.— But one question presented by the record will • be considered, and that is: “ The verdict of the jury is contrary to law and is not supported by the evidence in this, that the evidence shows that the plaintiff’s son was injured while serving the Galveston, Harrisburg & San Antonio Bailway Company, and while upon the grounds and while nandling the cars and apparatus of that company. The allegations of the petition are to the effect that the son of the appellee was injured while in the service of appellant,” etc.

From the evidence as given in the statement of facts it will be seen that the injury neither occurred upon appel- . lant’s road nor yard, but on the yard of the Galveston, Harrisburg & San Antonio Railway Company, and that the (kind of) cars he was attempting to couple were not even used by appellant’s road. The court below evidently proceeded upon the theory that the relation of master and servant existed between appellant and young Dorsey, with all its attendant liabilities, whether he was operating upon the one or another of the three different and distinct yards for which he had engaged to serve. McGee, the yardmaster, was in the employ of the three corporations. True, he was paid by appellant, but under the circumstances he was no less the employee of the other companies. In our opinion young Dorsey, while engaged upon the yard of the Galveston, Harrisburg & San Antonio Railway Company, could not be considered as the servant of appellant, and could only look to the Galveston, Harrisburg & San Antonio Railway Company for protection against defective tracks, cars and machinery. Under these facts as presented by the record, neither of these corporations can be held as guarantors of the tracks, cars and machinery of the other. Our conclusion is that under allegations of the petition and the evidence disclosed by the record the judgment has no legal foundation or support, and therefore ought to be reversed and remanded, and it is so ordered.

Reversed and remanded.