Armstrong v. Missouri-K.-T.-R. Co. of Tex.

• Decision Date: 06 October 1950
• Docket Number: MISSOURI-KANSAS-TEXAS-R,No. 14240,14240
• Parties: ARMSTRONG v.CO. OF TEXAS.
• Court: Texas Court of Appeals

Page 942

233 S.W.2d 942

ARMSTRONG v. MISSOURI-KANSAS-TEXAS-R. CO. OF TEXAS.

No. 14240.

Court of Civil Appeals of Texas, Dallas.

Oct. 6, 1950.

Rehearing Denied Nov. 3, 1950.

Gullett & Gullett and Rawlins & Briggs, all of Denison, for appellant.

Freels & Elliott, of Sherman, and G. H. Penland, of Dallas, for appellee.

YOUNG, Justice.

The suit in District Court was by Armstrong against appellee Railroad, invoking provisions of the Federal Employers' Liability Act, 45 U.S.C.A. § 51 et seq., for personal injuries allegedly suffered by him on March 10, 1948 while employed by appellee in capacity of section laborer assigned to the duty of cleaning out waste accumulations in oil traps.

Among the acts of negligence pled by appellant with issues in support were the following: (Issue 2) Failure of defendant to install a suffficient number of handholds on the oil trap lid for purpose of lifting the same; and (Issue 23) that plaintiff was furnished with an inadequate shovel with which to do his work; both issues having affirmative answers with findings of negligence and that such was a proximate cause of injury. The jury acquitted plaintiff of all charges of negligence, in which connection the further jury issues and answers may well be summarized: (Affecting plaintiff) That there was no negligence touching his failure (1) to utilize the services of co-worker Jones in raising the lid; (2) in his failure to call upon Jones for assistance; (3) in his failure to block up the lid with shovel before attempting to raise it; (4) that he did not fail to remove the ice from middle trap lid; (5) nor to correctly judge his own ability to lift the lid in question. (Affecting defendant) There was no negligence in failure to furnish plaintiff with pinch bar, pick, or winch; or in not installing a counterbalance on trap lid; or in not constructing middle lid of trap so that it might be lifted in sections; that plaintiff had a reasonably safe place to work; defendant furnishing him with defective shovel, but such was not negligence; and that the occurrence was not an unavoidable accident. Damages were fixed at $38,346 inclusive of medical and hospital expenses past and future. Plaintiff duly filed motion for judgment on the jury verdict, defendant moving for judgment non obstante veredicto, which latter motion upon hearing was sustained with result of plaintiff's appeal from the adverse judgment rendered.

The factual background explanatory of appellant's work and duties at time of injury is graphically shown in reply brief of appellee, from which we restate the following: At Ray Station, Denison, was located the Company roundhouse where engines were drained of oil, grease, silt, sand, and grime, which waste material went into a sewer line; and, passing through a series of excavations known as oil traps, finally emptied into adjacent Corn Creek. These traps were designed to collect and retard passage of waste oil and sludge and thus prevent the same from draining into and polluting said creek. They were located at varying distances from the roundhouse, the trap and locus of plaintiff's alleged injury being about 200 feet southwest, in the general vicinity of which was a large earthen tank or settling basin. Each trap, an excavation 10 or 12 feet deep and 4 feet wide, was constructed in sections,-either two or three; the trap in question being of three sections and some 20 to 25 feet in length, lying east and west. The end sections of this trap were each covered by two doors or lids opening from the center outward; the middle trap (place of injury) was covered by only one door, approximately 4 by 6 feet in size, of creosoted bridge material and weighing according to testimony around 123 lbs. These doors had handles of rubber hose, east and west doors equipped with two handles, the middle door with one, all lying flat to ground and working on hinges. They were opened by simply lifting and laying lid back, raising up just like the doors on an old-fashioned cistern. They were serviced by a two-man crew, on this occasion by plaintiff and one F. E. Jones. The routine was for one man to descend by way of a ladder, skimming off the oil standing on top of water into a bucket which was hauled up by a rope; then strained of cigar and cigarette butts, matches, etc., into a 55-gallon wheeled drum, moved to an oil sump and poured out. The mud and sludge settling on trap bottom was shoveled into a five-gallon can; and when pulled to the surface was placed in a wheelbarrow and rolled to a nearby dump where the contents were emptied and burned.

Plaintiff, 30 years of age, weighing some 190 lbs., and 6 5 ' in height, was accustomed to hard manual labor prior to injury. He testified to the occurrence of March 10, 1948 as follows: It was his initial duty of that morning,-weather cold, with surface ice. Accompanied by Jones, he went first to west trap, opening doors, descending and cleaning out the same in manner already described. They then proceeded to middle trap, first chipping ice off from around the opening with shovels; Armstrong then reaching down, grasping door handle and lifting up; describing the operation in this manner: 'I got the door I'd say from six to eight inches high, and this pain hit me in the back, and the door went down and I went with it.' (The resulting injury was later characterized by his medical witness as a ruptured disc, vertebral.) After an interval and with continued pain in back, plaintiff stated that they got the lid up by further scraping away of ice, then inserting shovel blades under lid and prizing, Jones lifting by inserting fingers under edge of lid.

Armstrong had been working on the oil trap job for some two years, the doors being customarily opened by the man getting there first, one grabbing a door and opening it, the other moving on to lift the next. He had done a great deal of the trap door lifting, being well familiar with their size and weight, knowing that the middle door was 'plenty heavy'; testifying that he would usually lift it up to where his helper could take hold and 'push it up with me.' While engaged on the particular job, as plaintiff stated, he worked independently of his section foreman, knowing what was to be done each morning and going ahead with it. When he first attempted to lift the door his fellow-employee (Jones) was standing by, plaintiff not remembering whether he had requested Jones to assist in the raising.

Jones testified that they went first to this middle trap, both scraping ice away with shovels, prizing under lid to loosen it, putting shovels aside, Armstrong then attempting to raise the door by means of handle, but failing as already narrated; that on a second attempt they prized the door up with shovels, Jones leaving his in place, both men then lifting the lid up and shoving it back; the cross-examination here being as follows:

'Q. Was there any reason why you shouldn't have done that the first time you started up with it? A. I don't know of any. * * *

'Q. Was there any reason why that couldn't have been done the first time? A. No, we just overlooked it.

'Q. Mr. Armstrong didn't say anything to you or anybody else about doing it that way the first time, did he. A. No, sir.'

Jones further testified that Armstrong was the head man and oldest on the job of oil trap cleaning, on each occasion directing the work to be done.

Appellant's points (five in all) predicate error on action of the trial court in overruling his motion for judgment in face of jury issues 2 (failure of appellee to furnish a sufficient number of handholds on the trap lid) and 23 (providing inadequate shovel), such act and omission on part of defendant constituting negligence and proximate cause of injury. Appellee in turn presents cross points wherein assertedly prejudicial argument of plaintiff's counsel is briefed, also complaining of excessiveness of verdict and error of court in ruling that the cause is governed by the Federal Employers' Liability Act, and consequent refusal of defensive issues 3, 4, and 5.

Even on the assumption that provisions of above Federal Act are available to plaintiff, liability thereunder is not shown merely because of an injury arising in performance of duty. 'To establish a cause of action against Defendant under the Federal Employers' Liability Act, Plaintiff had to prove that Defendant was negligent respecting him and that this negligence was a legal cause of his injury'; Gulf, Colorado & S. F. Ry. Co. v. Waterhouse, Tex.Civ.App., 223 S.W.2d 654, 658; and in Texas our Supreme Court lays down the following basic rule: 'Negligence rests primarily upon two elements: (a) reason to anticipate injury, and (b) failure to perform the duty arising on account of that anticipation. * * * Although injury may result from a person's act or omission, yet, if the actor...