Wall v. Texas & Pacific R'y

2 Posey 432

• Court: Texas Commission of Appeals
• Decided: July 1, 1882
• Docket: No. 938
• Status: Published

Opinion

Opinion.— Under the allegations in the petition Monahan had full and complete power to employ and discharge operators under him, and in sustaining the general demurrer to the petition the court must have regarded appellant and Monahan fellow-servants. An agent having such authority has been generally considered, as far as the servants under his control are concerned, as in legal effect occupying the position of the master. Kan. Pacific R. Co. v. Lit-tie, 19 Kan., 267; Louisville & N. R. Co. v. Bowler, 19 Heisk., 866; Cook v. Hannibal & St. J. R. Co., 63 Mo., 397; Deppe v. Chicago, R. I. & P. R. Co., 38 Iowa, 592. See Wait’s A. & D., vol. 4, 416; also Pierce on Railroads, p. 369, n. 3; 58 Tex., 287. Judge Cooley, in his work on Torts, p. 563, says: “ It is also, as has been shown, the duty of the master not to send the servant upon dangerous service for which he has not undertaken, and if he places the servant under the orders of another, who requires him to perform such dangerous service, whereby he is injured, the wrongful act is properly attributable to the master himself.” Marr v. Oriental Print Works, 11 R. I., 152; Chicago, etc., R. R. Co. v. Bayfield, 37 Mich., 205; Frandsen v. Chicago, etc., R. R. Co., 36 Iowa, 372.

Where there is no particular danger in the service itself, but the peril arises from extrinsic causes or circumstances which cannot be discovered bv reasonable care, the employer is liable if the servant is injured by reason of neglect or want of exercise of reasonable care upon the part of the employer. Perry v. Marsh, 25 Ala., 659; Gibson v. Pacific R. R. Co., 46 Mo., 163; Cumberland, etc., R. R. Co. v. State, 44 Md., 283; Baxter v. Roberts, 44 Cal., 187.

Again, the servant has the right to rely upon the prudence and caution of the master, and that he will be provided with a suitable place where, with due care upon his own part, he may safely perform the duty assigned to him, except as to the dangers necessarily attending it. The master is liable for injuries to the servant resulting from an exposure to dangers which do not come within the scope- of his employment. Coombs v. New Bedford Cordage Co., 102 Mass., 572. If the servant is employed in a dangerous service, it is the duty of the master to use all reasonable means to protect him against any increased or unnecessary danger that may occur from extrinsic causes. And the greater the peril arising from the service, the more care and prudence is required of the master in protecting him against an increase of danger arising from extrinsic causes. Hayden v. Smithville, etc., Co., 29 Conn., 548; Clark v. Holmes, 7 Hurlst. & N., 937.

Applying these principles to the cause under consideration, and taking as true the allegations in the petition, which are admitted for the purpose of the demurrer, and it seems to us that a good cause of action was therein asserted against the appellee. Under all the circumstances, can it be said that the increased risk was assumed by appellant as incident to the employment? Certainly not.

_ Our conclusion is that the judgment ought to be reversed and the causa remanded.