Bering Mfg. Co. v. Femelat

25 Citing cases

  1. Texarkana Ft. Smith Ry. Co. v. Brandon

    59 Tex. Civ. App. 451 (Tex. Civ. App. 1910)   Cited 3 times

    If the dangers are such as may be said to be obvious to a person of ordinary intelligence, or if they are ordinary ones incident to service the employe has contracted to perform, and so impliedly represented himself as competent to perform, in the absence of anything to show the contrary, the master may assume that the servant will understand and appreciate them, and he need not warn the servant. But where the dangers are not obvious, and where the servant has not contracted to perform the service, the master has no right to assume that the servant will know and appreciate the danger and should act on the assumption that he is ignorant and warn him thereof. Bering Mfg. Co. v. Femelet, 35 Texas Civ. App. 36[ 35 Tex. Civ. App. 36]; Gulf, C. S. F. Ry. Co. v. Newman, 27 Texas Civ. App. 77[ 27 Tex. Civ. App. 77]; Houston T. C. Ry Co. v. Strycharski, 35 S.W. 851, distinguished. 3. — Same — Case Stated — Charge.

  2. Lantry-Sharpe Con. Co. v. McCracken

    105 Tex. 407 (Tex. 1912)   Cited 20 times
    Reviewing pleading for vice-principal theory

    It is settled law in this State, that, in order to raise a co-employee from the grade of a fellow servant to that of vice-principal, he must have the authority to hire and discharge; or, be in the performance of a non-delegable duty of the master. Hugo, Smelzer Co. v. Paiz, 141 S.W. 521; Houston Ice Brewing Co. v. Pisch, 33 Texas Civ. App. 684[ 33 Tex. Civ. App. 684]; Bering Mfg. Co. v. Femelat, 35 Texas Civ. App. 36[ 35 Tex. Civ. App. 36]; Direct Navigation Co. v. Anderson, 29 Texas Civ. App. 65[ 29 Tex. Civ. App. 65]; Young v. Hahn, 96 Tex. 99; Maughmer v. Bering, 19 Texas Civ. App. 299[ 19 Tex. Civ. App. 299]; T. P. Ry. Co. v. Reed, 83 Tex. 439 [ 83 Tex. 439]; Austin Rapid Transit Ry. Co. v. Goethe, 88 Tex. 262; Ft. W. D.C. Ry. Co. v. Peters, 87 Tex. 222; Sweeney v. G.C. S.F. Ry. Co., 84 Tex. 433; I. G.N. Ry. Co. v. Heinze, 82 Tex. 623 [ 82 Tex. 623]; Nix v. T. P. Ry. Co., 82 Tex. 473 [ 82 Tex. 473]; G.H. S.A. Ry. Co. v. Smith, 76 Tex. 611 [ 76 Tex. 611]; Mo. Pac. v. Williams, 75 Tex. 4; G.C. S.F. Ry. Co. v. Blohn, 73 Tex. 637; M.K. T. Ry. Co. v. Whitlock, 16 Texas Civ. App. 176[ 16 Tex. Civ. App. 176]; M.K. T. Ry. Co. v. Hannig, 41 S.W. 196; S.A. A.P. Ry. Co. v. Reynolds, 30 S.W. 846; Ft. W. D.C. Ry. Co. v. Peters, 7 Texas Civ. App. 78[ 7 Tex. Civ. App. 78]. The rule that it is the duty of the master to provide a reasonably safe place and structure for his servants to work upon doe

  3. Lantry-Sharpe Co. v. McCracken

    53 Tex. Civ. App. 627 (Tex. Civ. App. 1909)   Cited 9 times

    — Appellant having placed Bruce in charge of the construction of the rock-crusher plant, with authority to manage, control and direct appellee and other workmen assisting him in the erection of said structure, as to their work thereon, and having placed said workmen under him with instructions to obey his orders, he was, therefore, a vice-principal, and not a fellow servant of appellee and the other workmen. McCracken v. Lantry-Sharpe Contracting Co., 101 S.W. 520; Abilene Cotton Oil Co. v. Anderson, 91 S.W. 607; Bering Manuf. Co. v. Femelat, 35 Texas Civ. App. 36[ 35 Tex. Civ. App. 36]; Waxhachie Cotton Oil Co. v. McLain, 27 Texas Civ. App. 334[ 27 Tex. Civ. App. 334]; M. P. Oil Co. v. Burns, 72 S.W. 626; Mexican Nat. Ry. Co. v. Finch, 27 S.W. 1028; Gunter v. Graniteville Man. Co., 18 S.C. 270, 44 Am. Rep., 573; Hunt v. Desloge C. Lead Co., 79 S.W. 710; Bain v. Irwin, 72 S.W. 522. It matters not that Bruce was performing an act of service at the time of the accident.

  4. Walsh v. Hershey

    472 S.W.2d 954 (Tex. Civ. App. 1971)   Cited 9 times

    It was important from plaintiffs' standpoint, under the facts of this case, that the inquiry made to the jury in Issue No. 13 be broken into two parts because the cause of action for the recovery of future medical expenses of the minor between date of the trial and her 21st birthday belonged to the parent, Doris Walsh, and the cause of action for those future medical expenses that Lisa would probably incur after her 21st birthday belonged to Lisa Walsh. Bering Mfg. Co. v. Peterson, 28 Tex. Civ. App. 194, 67 S.W. 133 (1902, writ dism.); Bering Mfg. Co. v. Femelat, 35 Tex. Civ. App. 36 [ 35 Tex. Civ. App. 36], 79 S.W. 869 (1904, writ dism.); Coates v. Moore, 325 S.W.2d 401 (Waco, Tex.Civ.App., 1959, ref., n.r.e.); Mercer v. Evans, 173 S.W.2d 206 (Fort Worth, Tex.Civ.App., 1943, writ ref.); and Tyrrell Hardware Co. v. Orgeron, 289 S.W. 1040 (Beaumont, Tex.Civ.App., 1926, writ ref.).

  5. Mosher Manufacturing Co. v. Boyles

    62 Tex. Civ. App. 636 (Tex. Civ. App. 1910)   Cited 5 times

    A foreman giving orders to those who have been placed by the master under him to work, and in reference to work under his control and supervision, necessarily speaks for the master and in such case is a vice-principal as to those over whom he is given such authority. Bering Mfg. Co. v. Femelat, 35 Texas Civ. App. 36[ 35 Tex. Civ. App. 36] ( 79 S.W. 869); Lantry-Sharpe Contracting Co. v. McCracken, 53 Texas Civ. App. 627[ 53 Tex. Civ. App. 627] ( 117 S.W. 453). In the last case cited, the common law rule, which is applicable in this State in cases not affected by our statute, is stated thus: "The superior servant who is given the right to employ and discharge those over whom he exercises supervision, is, as to such employees, while engaged in the service of the master, a vice-principal regardless of the grade of service in which he may be engaged at the time; while one merely authorized to control or direct the operations of other employees is such vice-principal only when exercising the delegated functions. If, for instance, an agent of the latter class should, while in the performance of some service of the same grade with those over whom he is placed, negligently cause an injury to another employee, it would be the act of a fellow servant, because the superior would not, in that instance, be ac

  6. Sullivan-Sanford Lumber Co. v. Cooper

    59 Tex. Civ. App. 536 (Tex. Civ. App. 1910)   Cited 2 times

    If Wilson had authority as foreman of the mill, as he had, to control the hands and supervise their work, and had authority, as he had, to take Ned Barlow from his regular work of block-setting and assign him to the work of assisting to repair the broken floor-plate, which he was doing at the time Cooper was killed, then it must be held, we think, that Wilson, in changing Barlow from his regular duties and directing him "to go below and unscrew the nuts from the bolts in the floor and drive the bolts up," was performing an act under his employment as foreman that he had authority to do, and that his act, as to the deceased, was the act of the master, and not a mere act of fellow service. 2 Labatt on Master and Servant, sec. 572; Lantry-Sharpe Mfg. Co. v. McCracken, 117 S.W. 453; Suderman Dolson v. Kriger, 50 Texas Civ. App. 29[ 50 Tex. Civ. App. 29], 109 S.W. 573; Missouri P. Ry. Co. v. Patton, 26 S.W. 978; Bering Mfg. Co. v. Femelat, 35 Texas Civ. App. 36[ 35 Tex. Civ. App. 36], 79 S.W. 869; Young v. Hahn, 96 Tex. 99, 70 S.W. 950. As warranted by the rule announced in the cases cited the special charge was properly refused, because, we think, it could not be held in the case that Wilson's status as vice-principal, as regards deceased, would legally be taken away and destroyed, as the special charge offered instructed, by the fact alone, as other facts of his authority and power appeared in the evidence, that his power of hire and discharge could only be exercised by him subject to the approval of the president, and the latter was the only issue that related to his power and authority of hire and discharge.

  7. Texas Pacific Ry. Co. v. Jones

    58 Tex. Civ. App. 132 (Tex. Civ. App. 1909)   Cited 5 times

    Appellant's first assignment of error is therefore sustained. (Bering Mfg. Co. v. Femelat, 35 Texas Civ. App. 36[ 35 Tex. Civ. App. 36], and authorities there cited.) Appellant's second assignment of error is as follows: "The court erred in his charge to the jury as follows: 'If you should find for the plaintiff . . . you will first find from the evidence what the reasonable value of said stock in the market at Hillsboro, Texas, on the 11th day of October, 1906, would have been with only such damages as ordinarily occur in shipping stock that distance with ordinary care.' "

  8. Gibson Cunningham v. Purifoy

    56 Tex. Civ. App. 379 (Tex. Civ. App. 1909)   Cited 3 times

    The reason of this rule is apparent, because if a special charge were given on the point excluded, or in effect excluded, it would be contradictory of the main charge, and the two charges would be misleading to the jury. The general form of the charge given in this case, in the first portion thereof, is criticised in the case of Bering Mfg. Co. v. Femelat, 35 Texas Civ. App. 36[ 35 Tex. Civ. App. 36], 79 S.W. 869. The latter part of the special charge complained of in the ninth assignment was upon the weight of the evidence, and should be omitted in another trial of the case.

  9. M. K. T. Ry. Co. v. Henserlang

    38 Tex. Civ. App. 524 (Tex. Civ. App. 1905)

    The company having ordered the use of the engine, after being affirmatively advised of its condition, the employe did not assume the risk of so doing unless the danger was apparent and manifest to him. Texas N. O. Ry. Co. v. Kelly, 34 Texas Civ. App. 21[ 34 Tex. Civ. App. 21], 80 S.W. Rep., 82; Bering Mfg. Co. v. Femelat, 35 Texas Civ. App. 36[ 35 Tex. Civ. App. 36], 79 S.W. Rep., 869; Harrison v. Railway, 79 Mich. 409; East Tennessee, V. G. Ry. Co. v. Duffield (Tenn.), 47 Am. Rep., 319. The evidence was sufficient to authorize the jury to find that the negligent act of appellant, in ordering and permitting the train pulled by the engine, with the loose main-pin and the engine disconnected, produced or caused the accident.

  10. Acme Products Co. v. Wenzel

    448 S.W.2d 139 (Tex. Civ. App. 1969)   Cited 4 times

    In the absence of facts which would render the minor personally liable for such expenses, he has no cause of action to recover them from a third party tort feasor. Bering Manufacturing Co. v. Femelat, 35 Tex. Civ. App. 36, 79 S.W. 869 (1904, writ dism.); Mercer v. Evans, 173 S.W.2d 206 (Tex.Civ.App. — Ft. Worth 1943, writ ref.).