Wagner v. Geiselman (Tex. Civ. App.).

Wales Riggs Plantations, Brinkley v. (Ark.)
Walker v. Goode (Ky.).

Walker v. Land (Tex. Civ. App.).
Walker, National Union Fire Ins. Co.
(Tex. Civ. App.)..

Walker, Rackliffe-Gibson Const. Co.
(Mo. App.).....

Walker v. State (Tex. Cr. App.)......
Wallace, Dixie Fire Ins. Co. v. (Ky.)...
Wallower v. Webb City (Mo. App.).
Washington v. State (Tex. Cr. App.)......1172
Watts v. Pierson (Mo. App.)..

524

893

Wilcox v. Citizens' Laundry Co. (Ark.)... 436 185 Williams v. Capital Mining, Lumber & Oil Wiles, Daugherty v. (Tex. Civ. App.).

.1089

.1132

Co. (Ky.)..

409

v.

Williams v. Commonwealth (Ky.).

372

..1095

Williams, Jones v. (Ky.)...

876

V.

Williams v. Owensboro Sav. Bank & Trust
Co.'s Receiver (Ky.)....

899

65

Williams v. State (Tex. Cr. App.).

938

206

140

Williams v. Uzzell (Ark.)..

843

48

Williamson, Hartshorn Bros. v. (Tex. Civ.
App.)

264

724

Wilson, A. Graf Distilling Co. v.

(Mo.

App.)

23

247

Wilson, Hart v. (Tex. Civ. App.).

520

Weaks v. McDowell Const. Co. (Ky.).
Weaver v. St. Louis & S. F. R. Co. (Mo.
App.)

127

Wilson v. Hoover (Ky.)....

880

Wilson v. Reynolds (Ky.)..

.1036

Wilson v. State (Tex. Cr. App.)

204

1

Webb, Stewart v. (Tex. Civ. App.)

537

Wilson v. State (Tex. Cr. App.).

.1185

Webb City, Wallower v. (Mo. App.).

48

Wiseman v. State (Tex. Cr. App.).

683

Weierich, Weierich's Ex'r v. (Ky.)..

370

Weierich's Ex'r v. Weierich (Ky.).

Witherspoon v. Staley (Tex. Civ. App.)... 557
Wofford, Strickland v. (Tex. Civ. App.).

916

370

Weinberger v. Insurance Co. of North
America (Mo. App.)

Wolcott, Carl v. (Tex. Civ. App.)....

334

Wolf, Ison v. (Ky.).

129

79

Welborn v. Metropolitan St. R. Co.

Wolfe v. Whitworth (Mo. App.)

715

(Mo.

App.)

115

Wrba v. State (Tex. Cr. App.).

.1164

Wells, Adams' Adm'r v. (Ky.).

Wells Fargo & Co. Exp. v. Hennessy (Tex.
Civ. App.)....

407

Wright v. State (Tex. Cr. App.).

624

.1158

Western Union Tel. Co. v. Carter (Tex.
Civ. App.)

Western Union Tel. Co. v. Duke (Ark.)... 452
Western Union Tel. Co. v. Evans (Ark.).. 424
Western Union Tel. Co. v. Glenn (Tex. Civ.
App.)

Wynn, Rodgers-Wade Furniture Co. V. (Tex. Civ. App.)....

340

332

.1116

Western Union Tel. Co., Jackson v. (Mo.
App.)

801

Western Union Tel. Co. v. Turley (Ark.).. Westminister Laundry Co. v. Hesse Envelope Co. (Mo. App.)..

Yoshida, Ex parte (Tex. Cr. App.).
Youngberg v. First Nat. Bank (Tex. Civ.
App.)

.1166

.1139

836

767

Weyman v. Newport (Ky.)..........

109

REHEARINGS DENIED

[Cases in which rehearings have been denied, without the rendition of a written opinion, since the publication of the original opinions in previous volumes of this Reporter.]

KENTUCKY.

Bennett Jellico Coal Co. v. East Jellico Coal Co., 154 S. W. 922.

Chesapeake & O. R. Co. v. Shepherd, 155 S. W.

Hoefflin v. Kentucky Title Savings Bank &

Lucas v. Commonwealth, 155 S. W. 721.

Martin v. Hall, 153 S. W. 997.

735.

Trust Co., 155 S. W. 1159.

South Covington & C. St. R. Co. v. Finan's Adm'x, 155 S. W. 742.

WERE DENIED, DISMISSED, OR GRANTED BY THE

SUPREME COURT OF TEXAS

IN THE FOLLOWING CASES IN THE

COURT OF CIVIL APPEALS

PRIOR TO JUNE 4, 1913.

[Cases in which writs of error have been denied, dismissed, or granted, without the rendition of a written opinion, since the publication of the original opinions in previous volumes of this Reporter.]

WRITS OF ERROR DENIED

Hankamer v. County Com'rs Court, 154 S. W. Missouri, K. & T. R. Co. of Texas v. Passons,

Ft. Worth & D. C. R. Co. v. Read Bros. & El Paso Bridge & Iron Co. v. Dunham, 152 S. Montgomery, 154 S. W. 1027.

St. Louis & S. F. R. Co. v. Wells, Nash & St. Louis Southwestern R. Co. of Texas v. Nash, 153 S. W. 659.

Grubb v. Galveston, H. & S. A. R. Co., 153 S. Southern Kansas R. Co. of Texas v. Wallace,

Hill County Cotton Oil Co. v. Gathings, 154 S. Townsend v. Houston Electric Co., 154 S. W.

WRITS OF ERROR DISMISSED

William Cameron & Co. v. Collier, 153 S. W. Adams v. Gray & Dudley Hardware Co., 153 1178. S. W. 650.

THE

SOUTHWESTERN REPORTER

VOLUME 156

WEAVER V. ST. LOUIS & S. F. R. CO. et al.
(Kansas City Court of Appeals. Missouri.
April 7, 1913. Rehearing Denied
May 5, 1913.)

1. APPEAL AND ERROR (§ 193*)-PETITION-
REVIEW.

Where a petition is first attacked on appeal for want of facts, the only question presented is whether the allegations, construed in the light of the most friendly rules of interpretation, are sufficient to support a verdict for plaintiff.

[Ed. Note:-For other cases, see Appeal and Error, Cent. Dig. 88 1226-1238, 1240; Dec. Dig. § 193.*]

2. Master AND_SERVANT (§_137*)—INJURIES TO SERVANT-RAILROADS CAR CLEANERS.

Lathrop, Morrow, Fox & Moore, of Kansas City, for Pullman Co. Cowherd, Ingraham, Durham & Morse, of Kansas City, for appellant Railroad Co. Fred W. Coon and Bird & Pope, all of Kansas City, for respondent.

JOHNSON, J. This is an action to recover damages for personal injuries plaintiff alleges were caused by negligence of the defendants, the St. Louis & San Francisco Railroad Company, the Pullman Company, and Edward Scanlon. Separate answers were filed and issues were raised by the pleadings which were subjects of controversy at the trial, not only between plaintiff and defendAt the close of the evidence the court susants, but among the defendants themselves. tained the request of defendant Scanlon for a peremptory instruction, and plaintiff took an involuntary nonsuit as to him. The separate demurrers to the evidence offered by the remaining defendants were overruled, and the case was submitted to the jury. A verdict was returned in favor of plaintiff against both defendants, and after unsuccessfully moving for a new trial and in arrest of judgment both appealed.

Plaintiff, a female car cleaner, was employed to clean certain sleeping cars while they were uniformly located each day on a switch track, they never having been moved to her knowledge prior to her injury. Certain forward cars of a train were removed to a different track for repairs, and were returned while plaintiff was at work on a stepladder coupled to the cars in which she was employed without warning to her, causing her to be thrown from her position and injured. Held, that it was the duty of the foreman of defendant sleeping car company, under whose supervision plaintiff was employed, to protect her either by flagging the cars on which she was working or by keeping a lookout for the missing cars Plaintiff was injured May 12, 1909, in the and giving timely warning of their approach, yards of the defendant railroad company in and his failure to do so rendered the sleeping Kansas City. She was a car cleaner emcar company liable for the injuries sustained.ployed by the Pullman Company, and was [Ed. Note.-For other cases, see Master and Servant, Cent. Dig. §§ 269, 270, 273, 274, 277, 278; Dec. Dig. § 137.*]

3. RAILROADS (8 275*)-PERSONS ON CARSSLEEPING CAR CLEANERS LICENSEE BY IN

VITATION.

Plaintiff employed to clean cars of a sleeping car company standing on the tracks of a railroad company was a licensee by invitation as to such railroad company, rendering it liable for her injuries, due to the negligence of its employés in moving the train while plaintiff was working in the sleepers without warning her or first ascertaining that she was not in a dangerous position.

[Ed. Note.-For other cases, see Railroads, Cent. Dig. §§ 873-877; Dec. Dig. § 275.*]

Appeal from Circuit Court, Jackson County; O. A. Lucas, Judge.

Action by Mrs. S. H. Weaver against the St. Louis & San Francisco Railroad Company and others. Judgment for plaintiff, and defendants appeal. Affirmed.

discharging the duties of her employment when she was injured by the sudden movement of the car in which she was working. The Pullman Company operates sleeping cars which form a part of the equipment of passenger trains operated by the defendant railroad company in and out of Kansas City. One of these trains, called the "Meteor" runs between Kansas City and Memphis, arriving at Kansas City every day at about 8:30 a. m. and leaving for Memphis in the evening. The train contains eight cars, three of which are sleeping cars owned by the Pullman Company and placed at the rear of the train. The mail, baggage, smoking, and chair cars are in front. The train comes into the passenger station from the south and after unloading, backs into the yards of the railroad company where the cars are separated and switched into position for the return trip.

⚫For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

After it is "made up" the train is left on a switch track known as "No. 7," and the car cleaners begin their work which usually is completed by noon. Seven or eight cleaners are employed by the Pullman Company, four of whom are women. At the time of the injury Scanlon was the foreman of the Pullman Company and had control over the cleaners. He had employed plaintiff about eight months before the injury and had instructed her in her duties. She was required to begin work at 7 o'clock in the morning, and her first task was to clean a sleeping car that came in on an early train, and then to work on the "Meteor," which, as stated, was always placed on track numbered 7, and always contained the same number and kinds of cars. Her work was restricted to the Pullman cars, and she had no interest in any other part of the train.

we think that Scanlon, the Pullman Company's vice principal, who was in and about the train while the cleaners were in the Pullman cars, knew that the train as made up was not complete, and that the railroad company might switch in the other cars at any time. He gave no warning to plaintiff, nor did he do anything for her protection. Scanlon himself testified that sometimes cars were backed in and coupled to the train while the cleaners were working, that no warning was ever given to the cleaners of such operations, and that he did not remember an instance when a train or engine was backed in "that would cause any trouble." A petition and bond for the removal of the cause to the federal court were filed by the Pullman Company, and the petition was properly denied. See Schwyhart v. Barrett, 145 Mo. App. 332, 130 S. W. 388; Sears v. Railroad, 163 Mo. App. 711, 147 S. W. 860.

Counsel for the Pullman Company assail the petition in their brief and argument on the ground that it fails to state any cause of action against that defendant. They contend that all of the allegations read together amount to an assertion that the custom and rule of the 'employés of the railroad company were to allow the train to remain undisturbed while the cleaners were at work, and consequently that the duty of the Pullman Company towards its cleaners did not require the promulgation and observance of rules to protect the cleaners against a possible negligent act of the servants of the railroad company that could not occur except in violation of the rules and customs of the yard.

Plaintiff testified that prior to the event in question the train which practically filled track No. 7 had never been disturbed during the time allotted for cleaning the cars, and she is corroborated on this point by other witnesses. It appears from the testimony of other witnesses who were better qualified than plaintiff to speak of the rules and customs of the yard that, while no other switching was done on this track, it was the practice of the employés of the railroad company, when the occasion demanded, to do switching connected with the "Meteor" train even at times when its cars were being cleaned. No such occasion had arisen during the period of plaintiff's service, and she had no knowledge of the practice. But on the morning of the injury it was discovered by the car inspectors that the smoking car need- On the other hand, counsel for the railed some repairs, and that car, together with road company attack the petition on the the mail and baggage cars, was switched to the ground that it does allege that the cusrepair track and only the five remaining cars tom of the yard allowed the switching crews of the train, including the Pullmans, were to disturb the cars while the cleaners were set on track No. 7. Plaintiff and the other at work "at any time that suited their work cleaners went to work as usual, and were to remove any car of said defendant railroad cleaning the cars when the railway company's employés switched the cars from the repair track to track No. 7, and coupled them to the train. At that moment plaintiff was standing on the top of a small stepladder, washing the ceiling of a toilet room. The jar of the collision which accompanied [1] The petition is long, and is not as clear the bringing together of the two parts of as it should be, but in answering to the merthe train was not violent or unusually severe, its defendants waived all formal defects, and but it was severe enough to throw plaintiff placed plaintiff in a position wherein she befrom the top of the ladder to the floor and came entitled to have her petition construed injure her. No warning was given by the in the light of the most friendly rules of inrailroad company's servants of their purpose terpretation. The question before us is that to make the coupling, and it does not appear of whether or not the petition so construed in evidence that their conduct was in vio- is sufficient to support the verdict. The gist lation of any rule or custom of the yard. of the cause of action pleaded and contested There was a rule that forbade the disturb- at the trial is that it was an unusual pracance of cars on which a certain kind of flag tice of which plaintiff had not been informed was displayed, but this rule had not been and had no knowledge for the "Meteor" train used for the protection of car cleaners. The to be moved while the cars were being cleanservants of the railroad company must have ed, and that each defendant owed the cleanknown that the cleaners were at work, anders the duty of not moving the train in a

company from said train for the purpose of making repairs thereon," and therefore that the sole duty of protecting the cleaners from possible injurious consequences resulting from such practice devolved on their master, the Pullman Company.