Adkinson v. City of Port Arthur

• Decision Date: 26 February 1927
• Docket Number: (No. 1487.)
• Citation: 293 S.W. 191
• Parties: ADKINSON v. CITY OF PORT ARTHUR.<SMALL><SUP>*</SUP></SMALL>
• Court: Texas Court of Appeals

293 S.W. 191

ADKINSON v. CITY OF PORT ARTHUR.^*

(No. 1487.)

Court of Civil Appeals of Texas. Beaumont.

February 26, 1927.

Rehearing Denied March 3, 1927.

Appeal from District Court, Jefferson County; J. D. Campbell, Judge.

Suit by Bruce Adkinson against the City of Port Arthur. From a judgment dismissing the suit, plaintiff appeals. Affirmed.

Jas. A. Harrison and O'Fiel & Reagan, all of Beaumont, for appellant.

Wistner & White, of Port Arthur, for appellee.

WALKER, J.

We take the following statement of the nature and result of this suit from appellant's brief:

"This is a suit brought by appellant against appellee to recover the sum of $55,000 on account of personal injuries sustained by appellant in course of employment with the appellee.

"The city of Port Arthur is a municipal corporation, created and acting under a home rule charter.

"The appellant was a fireman employed by the city of Port Arthur under contract for wages.

"The city of Port Arthur had erected a wall or drill tower for the purpose of drilling the city firemen in scaling walls, and especially for the purpose of drilling them in the use of Pompey ladders.

"A Pompey ladder is a long pole with metal hook on the end, and with crossbars at regular intervals on same for steps.

"Two firemen are necessary in the use of this ladder and the method of operation is as follows: The ladder is raised to the first window and hooked over the window sill for support. The men then ascend the ladder crossbar steps. When they get to the first window, the men are strapped together for support. One of the men stands on the floor inside the tower at the window sill, and the other stands on the sill and raises the ladder and hooks same to the window next above. An iron rod or crossbar is built into the window for the purpose of handhold and protection against falling. One side of the tower or wall had iron crossbars in the windows, and the other side had no such crossbars.

"The appellant and one Riffley Robbins were ordered by the chief of the fire department, who was present, issuing orders and directing the drill, to Pompey the wall having no crossbars in the window.

"In obedience to this order they ascended to the first window, buckled themselves together with a strap provided for that purpose.

"Appellant was standing on the floor inside of the window, and Robbins was standing on the window sill to lift the ladder and attach same to the window sill next above.

"In order to do this, he had to lean or stand at a tangent or angle, and while doing so, slipped; there being no crossbar to hold to or for appellant to use as a brace, said Robbins fell, and, being strapped to appellant, appellant was jerked over the window sill, and they both fell to the ground, appellant receiving a broken back and other injuries, which rendered him a total permanent invalid and cripple.

"The facts are, as alleged in appellant's petition, that the city of Port Arthur operated under the provisions of the Workman's Compensation Law of Texas, and was entitled to insure its employees under the terms of said law, and had failed and refused to become a subscriber thereto, or thereunder, and the plaintiff stated in his petition a cause of action against defendant, based on said Workman's Compensation Law.

"The plaintiff also stated a cause of action at common law, based on the allegation that the drill tower or wall was erected by the city of Port Arthur, was its private property and used for its private and corporate benefit in drilling firemen, and alleged negligence in failing to exercise ordinary care to provide plaintiff with a reasonably safe place to work.

"The court sustained a general demurrer to plaintiff's petition, and, the plaintiff declining to amend judgment was entered, dismissing the suit, to which action plaintiff duly gave notice of appeal, perfected his appeal, and filed the transcript herein, in due time and in conformity with law.

"The court in its judgment as a reason for sustaining the demurrer stated that the petition did not set out a cause of action against the defendant at common law. and that the Workman's Compensation Law of Texas does not apply to employees of a city as to injuries or damages, which the employee could not recover at common law."

On the foregoing statement, his first proposition is as follows:

"The appellee, city of Port Arthur, is subject to the Workman's Compensation Law of Texas, and, having failed to become a subscriber under said law, is liable to appellant, an employee of defendant under contract of hire, for all damages sustained by him in course of his employment, arising out of or caused by the negligence of appellee, its servants, and agents, and appellant's petition stated a cause of action against appellee under the Workman's Compensation Law."

The City of Tyler v. Texas Employers' Insurance Association, 288 S. W. 409, is squarely in point against appe...