Walker v. El Paso Electric Railway Co. , 103 Tex. 259 ( 1910 )

The plaintiff in error, who was the plaintiff in the lower courts, was in the employ of Stone-Webster Engineering Corporation and was working for such corporation in the same enclosure where the work of the electric railway company was going on. But there was no connection between the work of the Stone-Webster Corporation and that of the electric railway company. There was some arrangement between the companies for the exchange of workmen between them but plaintiff in error knew nothing of this. Upon request of the workmen of the electric railway company for help in fixing the dynamo or electric generator, the plaintiff in error was directed by his superintendent to assist in fixing the instrument and went without protest on his part. While serving in fixing the dynamo he was struck upon his hand, as he alleges, through the negligence of one Jasmer, who was a servant of the electric company and was assisting in the same work, and his fingers were crushed with the result that some joints of them were lost. Whose servant was plaintiff in error at the time of his injury? If he was the servant of the electric railway company, then Jasmer was his fellow servant, and he can not recover for his negligence. There was testimony, undisputed, to show that in the arrangement between the two companies, when one company hired to the other a servant to do the work of that other, the hiring company was to pay his wages for the time that he was employed in doing the work. That the plaintiff in error did not know of this arrangement we apprehend makes no difference. He knew the work he was directed to do was not the work of the Stone-Webster Corporation Company. He and Jasmer were engaged on the same piece of work and were working to a common purpose and were paid by the same master and hence were fellow servants. Was the work being done for the purpose of expediting the business of the Stone-Webster Corporation? The evidence was that the dynamo for the repairing of which the work was being done had got out of repair and would not work, and that to get it in order so that the work of the street railway company should go on it should be repaired. They had another dynamo, which was capable of doing this work, but it was probably not adequate to every emergency. In order to do this expeditiously they hired the plaintiff in error to assist in the work. The only way in which the Stone-Webster Corporation was affected by the work was that they were making new dynamos for the electric company and may have been compelled to press that work, if the old dynamo was not fixed. The evidence that the plaintiff in error did the work under the direction of the superintendent of the Stone-Webster Corporation Company was as testified to by plaintiff in error, "I had my directions from Mr. Ralph, my employer, superintendent of the Stone-Webster Corporation. He directed me what to do on the old machine and I followed his instructions."

The first assignment of error complains of the giving of a requested charge for the defendant. The charge told the jury that if at the time of plaintiff's injury he was an employe of the Stone-Webster Engineering Corporation Company but was requested by employers of defendant and directed by Ralph, superintendent of Stone-Webster Engineering Corporation Company, to assist in making the repairs on the dynamo and that in compliance with said request he was making repairs together with one Jasmer, an employe of defendant, and that at the time of his injury he was doing the work with Jasmer for the defendant company and not for the purpose of expediting the business of the Stone-Webster Engineering Corporation, then that plaintiff and Jasmer were fellow servants and plaintiff could not recover for Jasmer's negligence. It is first objected to this charge that it omitted to state the issue of whether plaintiff in error was doing his work under the direction of his employer Ralph. When Ralph gave him directions as to the repair of the dynamo he does not say — presumably it was at the time he told him to go and to fix the appliance. He does not say that when he went to do the work Ralph went with him, and it appears from the testimony of other witnesses that when the work was done no one was present but the employees of the electric railway company. So that it appears that Ralph did not give him instructions as the work progressed. The coil of the dynamo or generator had burned out and it was necessary to put in a new one. That the work was to be done and how to do it, is in our opinion a very different thing from directing the work as it was done. Does the fact that, when a servant is hired by one person to do a work, his first employer tells what is to be done and how he is to do it, so change the relation of the parties as that the servant remains the servant of his first employer? I think not. Such are my individual views of this question, but the other members of the court are not prepared to concur. But the plaintiff, after pleading the facts and the defendant having set up the defense that plaintiff and Jasmer were fellow servants, filed a supplemental petition in which he replied that the work he was sent to do "was in furtherance of and to expedite the business of the Stone-Webster Engineering Corporation," without a word as to his having done it under the direction of Ralph, the superintendent of the latter company. The original petition it is true alleges that the work was being done "at the request and under the direction of Gould and the employees of the defendant who had charge of and supervision of said work and acting also under the supervision of said Ralph, the superintendent and manager of the Stone-Webster Engineering Corporation." This leaves it doubtful as to the meaning as to who was directing the work — that is, whether the servants of the electric railway company or the superintendent of the Stone-Webster Engineering Corporation, so that we think that the question of Ralph's direction was not an issue in the case.

We deem it sufficient to say as to the other assignments in the application that in our opinion they point at no error.

The judgment is affirmed.

Affirmed.