#### THE HOUSTON AND TEXAS CENTRAL RAILWAY CO. V. HENRY RIDER.

IN SUPREME COURT,

TYLER TERM, 1884.

*JIaster and Servant.*— Wlion two persons are serving tlie same master, working under tie same control, deriving their authority and compensation from the same source, and are engaged in tlie same general business, though it may he in different grades or departments of the. same common service, they are fellow servants.

*Case approved.*— Dallas v. *(i. O.*<te S. 3Te R’y Co. 61 Texas. 19(5.

*Railroad Uompang.*— Liability.—Note this ease for evidence held insufficient to support a verdict for damages against a railroad company.

Error from Dallas County.

The testimony offered for the plaintiff, which is uncontroverted by any which appears in the record, shows that the plaintiff was in the employment of the railway company as a section hand, and that he and others in the performance of the duties which such employment-embraced, had been engaged in repairing the railway and removing a wreck therefrom, and that after having done this, they were returning to the section house at which they usually stayed.

• Erom the section house to Miller’s station they had gone toward the wreck on a hand car, but on reaching Miller’s station they left the hand car and went to the wreck on some train. After the work on the wreck was completed, they returned to Miller’s station on a construction train, which had orders from the train dispatcher to go into Dallas in advance of the mail train.

On arriving at Miller’s station the flat ear *on*which plaintiff was travelling was placed on a switch, that the men on it might return from that place to the station house on the hand car on which they came to Miller’s station. After that was done, the residue of the construction train, which consisted of a locomotive and tender and a caboose and one flat car, ran back toward or to the main track in order to go into Dallas in advance of the mail train which was near and rapidly approaching; on seeing this, the *engineer*on the construction train, probably to avoid a collision, ran his train back on to the switch and in doing so, the construction train ran against the car on which the plaintiff was, with snob violence a§ *351to heavily jar it,' from which the plaintiff was thrown from the cars and seriously injured. No signal was given by the engineer on the construction train before running his train on the switch the second time.

The evidence shows that the engineer in charge of the construction train was regarded as a skillful and careful engineer, and there is uo evidence of any defect in the train.

The duties of the plaintiff, under his employment as a station hand, are thus stated by the foreman of the section on which he- was employed. “I was foreman under whom plaintiff worked, he was section hand in my gang at the time of the accident. The duties of a section hand are to work on, and repair his section, and in ease of a wreck on his section, to go and repair it; and in case of a wreck on any other section than his, it is his duty to await orders to assist in repairing the wreck. It is his duty to go and assist. My section hands had no duties or employment connected with the cars by which the injury was occasioned at any time or times. The section hands did not constitute a part of the working force of the train when they run on it. I mean the train which caused the accident. There are different construction trains; the section hands when on some of them had to assist, but this train the section hands had nothing to do with. It had its own crew. There were no duties of the section hands on or toward-this train as it had its own crew, but toward such trains when they did not have sufficient crew, the section hand liad to assist in loading and unloading material, but they had nothing to do with any other work on it.”

That, under this state of fact which is not controverted, the plaintiff and those persons engaged in operating the train were fellow servants, we have no doubt. This question was fully considered in the case of Dallas v. G. G. & S. Fe R>y Go. (61 Texas 196) and the' authorities bearing on it are there sufficiently cited.

The fact that the plaintiff may not have been charged with a duty which rendered it incumbent on him actually to assist in the management of the train does not affect the question. All the parties were “serving the same master, working under the same control, derived their authority and compensation from the same common source, and were engaged in the same general business, though it may have been in different grades or departments of the same common seyvice,” This made them fellow servants, and the court in a gene*352ral way so charged. The charge of the court was evidently disregarded or misunderstood by the jury and their verdict, there being no controversy as to the facts, should have been set aside and a new trial granted on the motion of defendant.

The court gave the following charge ; “If plaintiff received the injury complained of at a time when he was not serving the defendant, but at a time when his service for defendant had ceased, and when he was on his own private business, then he would not be a fellow servant with train men in the service of defendant.”

Charges should have been given with reference to the fact proved. In this case there was no evidence tending to prove that plaintiff was not in the service of defendant at the time he was injured, and the petition expressly avers ’’that he was a section hand in the employ of defendant,” referring to the time he was injured, and to this fact the plaintiff himself testified.

The charge given was not called for by the facts and was calculated to mislead the jury, and to cause them to consideran issue not before them.

The injury was inflicted on the Oth day of June, 1880, which was Sunday, and until about twelve o’clock of that day the hands, including the plaintiff, were engaged in clearing a wreck and repairing a bridge and the track of the railway, after which they started and travelled on a construction train to Miller’s station there to take the hand car to the station house. That this was on Sunday did not change the relation which existed between the engineer on the train, and the plaintiff. They were fellow servants, nevertheless, in view of the rule which affects the question of the master’s liability, even if the work in which they were engaged was not such as the law permits to be done on that day, which we do not deem it necessary to consider.

The injury evidently resulted from the act of the engineer, and not from the act of the train dispatcher, and it becomes unnecessary to consider the relation of that person to the plaintiff.

Eor the reasons noticed, the judgment of the court below will be reversed and the cause remanded, and jt is accordingly so ordered.

Reversed and remanded.

Stayton, J.