8224 Writ of error pending in Supreme Court. The appellee predicates error, in the first assignment of error, upon the refusal of the court, after request so to do, to peremptorily instruct a verdict in its favor. The contention is upon the ground that the evidence conclusively shows that the appellee sustained his injury in the course of his work directly and only through the act of M. D. Cheek, working with and in the same common employment as himself, in carelessly turning loose and letting fall a plank that was being lowered by him from the stack of lumber for the purpose of being loaded by appellee on a truck. In his original petition appellee averred that his injury was caused by the negligent act of M. D. Cheek, as stated above. And the evidence of appellee, which is without dispute in the record, sustains such averment as to the manner of injury. Appellee testified that he and M. D. Cheek were at the time working together in taking lumber from a pile or stack and loading it on a truck. M. D. Cheek was on top of the stack lowering each plank to the appellee on the floor at the bottom of the stack, who would receive the plank from Cheek and load it properly on the truck. In the course of the loading a plank got crosswise on the truck, and appellee, raising his hand, said to Cheek, "Wait till I straighten this plank." At the time appellee requested Cheek to wait, it appears that Cheek "was coming over with this lumber," which inferably means that Cheek was in the act of lowering a plank at the time. It does not appear from the evidence whether Cheek did or did not either see appellee straightening the plank on the truck or hear the request of appellee to wait. It is inferable, though, that Cheek, with ordinary observation and prudence, could have seen that appellee was straightening the crosswise plank on the truck. M. D. Cheek, after lowering the plank the usual distance downward, simply turned it loose, and the end of the plank struck on the lumber on the truck and rapidly slid or glanced in the direction of appellee and hurt him. It was conclusively shown, and admitted as a fact by appellee, that M. D. Cheek was not clothed with authority of hire and discharge. The legal effect of these facts, established without dispute, is to make the relation between Cheek and appellee that of mere fellow servants and to deny appellee a recovery against appellant, upon the ground that his injury was solely caused by the negligent act of his fellow servant, for which appellant is not legally responsible. Langtry-Sharpe *Page 792 Contracting Co. v. McCracken, 105 Tex. 407, 150 S.W. 1156. In Railway Co. v. Anderson, 102 Tex. 402, 118 S.W. 127, bearing some similarity as to the manner of injury, Anderson was injured by the falling of a rail which he and other section men were removing from the hand car to the track. And because Anderson and those assisting him, and causing the injury, were fellow servants under the common law, a recovery was denied Anderson. And to same effect under similar facts is Lakey v. Railway Co.,33 Tex. Civ. App. 44, 75 S.W. 566. Appellee urges a distinguishment between these cases and the instant one upon the ground that, taking appellee's testimony as to the capacity of M. D. Cheek, he was a subforeman with authority to direct the work and with instructions to report failures of duty to the general foreman. Under the rule firmly announced by the Supreme Court in the McCracken Case, supra, it is not thought that M. D. Cheek was, in the circumstances, in the relation of a vice principal of the appellant rather than a mere fellow servant working with appellee. M. D. Cheek was working at the time in the capacity and only doing the services of a fellow servant passing plank from the stack to the appellee. Performing at the time, as Cheek was, merely the duties of a servant, then, as to appellee engaged with him in the prosecution of the same common object, he was merely a fellow servant. And it would be this fact in this case, that Cheek was only discharging the duties customary in his work with appellee, and was not at the time of the injury exercising any power or function, if he had such, which was an essential attribute of the position of vice principal, that would control and determine that Cheek was not such representative of the appellant as would make it liable for Cheek's personal negligence.
Appellee, though, insists that, if the evidence fails to support recovery on the ground alleged in the original petition, yet the peremptory instruction should have been refused because in the supplemental petition another ground of negligence was set up, and the evidence raises an issue in that respect. The appellant replies that allegations made in the supplemental petition could not afford the basis of recovery under the law of pleading. The ground of negligence set up in the supplemental petition is, in substance, that appellee and M. D. Cheek were doing the work of loading lumber as expeditiously as could be done with safety with all usual dispatch, and that W. C. Pittman, shed foreman and in general charge of the work as vice principal of appellant, came to the place of work and required of appellee and Cheek to do the work more rapidly than it could be done with safety, and, in an effort to obey the orders of W. C. Pittman, appellee was injured in the manner stated in his original petition. The full evidence relied on, as shown by the record, is as follows: Appellee testified:
"I was hurt directly after dinner. About 15 or 20 minutes before I was hurt I saw Mr. W. C. Pittman in the run where we were working. He came down there where we were unloading some lumber and changed our work and sent us up there to load out some lumber. He kinder got after Cheek a little bit about being slow loading some stuff. He asked him why he couldn't get this lumber out; that he didn't want those buggies standing there. I asked him if he were talking to me, and he said, `No;' that he was talking to Cheek. We had been doing the work about as usual, as we always worked. The work was being done in a hurry. We were trying to get the lumber out. It was being done as rapidly as it could be done with safety. * * * He came down there and said they were needing lumber at the machines, and that they wanted some lumber, and said: `Don't let those buggy hubs grow to the spindles. We want lumber up there. Keep those buggies loaded and get that stuff out of here.' And he jumped at a stack of lumber and pulled it off of another buggy down there that had been run in and stopped; and he wanted to get the buggies. He sent us from there to this stack of lumber. He told Mr. Cheek to go up there and load out some lumber, to load lumber on those buggies, and we did so. A hundred pieces, I believe, is the amount he wanted. * * * After Mr. Pittman had been down there and reprimanded Cheek he was getting the lumber out faster, he made the remark, `Well, we will load it out in a hurry, and we will try and please him.' "
Assuming only for the moment that appellee could invoke the aid of his supplemental petition to enlarge the cause of action, still it is concluded, under the evidence, appellee would not be entitled to recover. The evidence conclusively establishes without dispute that the real producing cause of the injury was solely the act of M. D. Cheek ill simply turning loose and letting fall a plank after being requested by appellee himself to wait a while. The order to hasten the work, previously given, did not include nor imply directions to Cheek to turn loose and let fall the plank whether or no. And the evidence does not, even remotely, explain or tend to show that the plank through hurry slipped or was caused to fall. Appellee explains it thus:
"Cheek would slide the lumber off, and it would come down, and I would catch the end of it. He would hold it until it came down, and I would catch hold of the end of it. * * * I was trying to straighten a plank on the buggy, and Cheek sent a plank down before I was ready for it. * * * When I first saw this piece of lumber coming down from above, it was in about 4 feet of me, and if I had had my hands loose I would have had plenty of time to have reached up and took hold of it, but I didn't do this because I had told Cheek to hold, to wait a minute until I straightened that lumber. I wasn't watching him, and didn't know the plank was loose until I heard it slide. It was sliding all the time it came over. * * * I knew when he turned it loose, because of the difference in the movement of it. * * * The first time I saw that it was turned loose was when it had struck the buggy and I looked around and saw it."
In View of the facts as admittedly shown by the record, it is believed the court should *Page 793 have given the peremptory instruction. The judgment is therefore reversed and here rendered in favor of appellant, with all costs of appeal and of the trial court.
Reversed and rendered.