Atchison, T. & S. F. Ry. Co. v. Smith

• Decision Date: 27 February 1978
• Docket Number: No. 5764,5764
• Citation: 563 S.W.2d 660
• Parties: The ATCHISON, TOPEKA AND SANTA FE RAILWAY COMPANY, et al., Appellants, v. Robert E. SMITH, Appellee.
• Court: Texas Court of Appeals

Page 660

563 S.W.2d 660

The ATCHISON, TOPEKA AND SANTA FE RAILWAY COMPANY, et al., Appellants, v. Robert E. SMITH, Appellee.

No. 5764.

Court of Civil Appeals of Texas, Waco.

Feb. 27, 1978.

Rehearing Denied April 6, 1978.

Joe Bruce Cunningham, Hudson, Keltner, Smith, Cunningham & Payne, M. Hendricks Brown, Brown, Crowley, Simon & Peebles, Fort Worth, for appellants.

David H. Burrow, Helm, Pletcher, Hogan & Burrow, Houston, for appellee.

OPINION

JAMES, Justice.

This is a suit by a railroad employee against his employer under the Federal Employers Liability Act, which suit also involves other defendants.

Plaintiff-Appellee Robert E. Smith, a brakeman and sometimes conductor, sued his employer, The Atchison, Topeka and Santa Fe Railway Company (hereinafter called "the Santa Fe"), the Erath Fertilizer Company, Inc. (hereinafter called "Erath Fertilizer") and Farmers Milling Company, Inc. (hereinafter called "Farmers Milling") for personal injuries sustained by Smith in the course and scope of his employment as an employee of the Santa Fe on or about October 7, 1974. The Santa Fe filed a third party cross-action against Defendant-Appellants Borden, Inc., Erath Fertilizer and Farmers Milling for contractual indemnity growing out of the breach of certain lease agreements more particularly hereinafter discussed, as well as for common law indemnity resulting from the negligence of said Appellants.

Trial was had to a jury which found:

(1) Erath Fertilizer was guilty of negligence in the following three particulars, each of which was a proximate cause of Plaintiff-Appellee Smith's injuries, to wit:

(A) In permitting fertilizer to accumulate on the ground near the railroad track;

(B) In failing to pick up the fertilizer from the ground after completing the unloading operation; and (C) In failing to make an inspection of the area after unloading fertilizer.

(1A) Farmers Milling was likewise found to be negligent upon the same three grounds hereinabove attributed to Erath Fertilizer, each of which was a proximate cause of Smith's injuries.

(2) The jury failed to find that Plaintiff Smith failed to keep a proper lookout; in other words, by doing so, the jury acquitted Smith of any contributory negligence.

(3) This was a proximate cause issue conditionally submitted upon an affirmative answer to (2), which was not necessary to be answered, and was not answered.

(4) The Santa Fe failed to provide a safe place to work for its employees,

(5) Which was a proximate cause of the occurrence in question.

(6) The jury failed to find that Smith's injuries were solely due to the Santa Fe's failure to furnish Smith a safe place to work.

(7) The jury failed to find that Smith's injuries were caused solely by the acts and omissions of Erath Fertilizer in permitting fertilizer to accumulate and remain on the ground near the railroad track.

(8) Farmers Milling failed to keep a space of six feet from the nearest rail of the railroad track entirely clear of material.

(9) Erath Fertilizer failed to keep a space of six feet from the nearest rail of the railroad track entirely clear of material.

(10) In answer to the damage issue, to compensate Smith for his past and future physical pain and mental anguish, his past lost earnings, and his future loss of earning capacity, the jury answered $150,000.00.

(11) In answer to the comparative negligence issue, the jury found Erath Fertilizer to be 37 1/2% To blame, Farmers Milling to be 37 1/2% To blame, and the Santa Fe to be 25% To blame.

After the jury verdict the trial court entered judgment in favor of Plaintiff Smith allowing him recovery in the amount of $150,000.00 against the Santa Fe, Erath Fertilizer, and Farmers Milling, jointly and severally; then the Santa Fe was allowed recovery of judgment over against Borden, Erath Fertilizer, and Farmers Milling, jointly and severally, in the amount of $150,000.00. Costs were assessed jointly and severally against Smith, the Santa Fe, Borden, Erath Fertilizer, and Farmers Milling.

In this appeal the Santa Fe is both an Appellant and an Appellee, being an Appellant insofar as the judgment against it (the Santa Fe) is concerned, and being an Appellee insofar as it (the Santa Fe) was awarded judgment over against the three cross-defendants hereinabove named.

Appellants Borden, Erath Fertilizer, and Farmers Milling appeal from the trial court's judgment. After careful consideration of all of the Appellants' points of error and contentions, we overrule same and affirm the trial court's judgment.

In a sole point of error as an Appellant, the Santa Fe asserts there is no evidence to support the jury's findings in answer to special issues 4, 5 and 11, wherein the jury found (4) that the Santa Fe failed to provide a safe place to work for its employees, (5) which was a proximate cause of the occurrence in question, and (11) that the Santa Fe was 25% To blame for the accident. We overrule these contentions.

Appellants Borden, Erath Fertilizer, and Farmers Milling assail the trial court's judgment upon twenty-two points of error which assert in effect the following contentions:

(1) The evidence is legally and factually insufficient to support the jury's findings of negligence upon the part of Erath Fertilizer and Farmers Milling in permitting fertilizer to accumulate on the ground near the railroad track, in failing to pick up the fertilizer after completing the unloading operations, and in failing to make inspections of the area after unloading operations.

(2) The trial court erred in its submission of the above-stated issues inquiring into the negligence of Erath Fertilizer and Farmers Milling and should have disregarded such issues for the asserted reason that such issues assumed that the occurrence took place on property under the control of Erath Fertilizer or Farmers Milling, and assumed that Erath Fertilizer was responsible for the fertilizer being on the west side of the track.

(3) That neither Erath nor Farmers owed any duty to Smith because he was a mere licensee and was not performing any service for either Erath or Farmers on the occasion in question; the trial court erred in assuming that Smith was an invitee when it was Plaintiff Smith's burden to secure a jury finding that he was an invitee; the trial court erred in refusing to submit Appellants' requested issues inquiring whether Smith was walking on any property under the control of Appellants at the time of the accident, or was performing any service beneficial to Erath, Farmers, or Borden.

(4) The trial court erred in entering any judgment against Borden, there having been no findings of negligence on Borden's part or testimony concerning Borden's operations.

(5) The trial court erred in awarding the Santa Fe indemnity against Erath, Farmers, and Borden because the "side track" agreements respectively applicable to such Appellants are ambiguous and unenforceable as a matter of law; and alternatively, if indemnity is allowed then under the terms of such side track agreements the Santa Fe would be entitled to only 50% Indemnity in view of the fact that the Santa Fe was also found to be negligent.

(6) The side track agreements for indemnity are unenforceable because the Santa Fe thereby unlawfully attempted by indemnity contract to exempt itself from the Federal Employers' Liability Act, in violation of Section 55 of Title 45, U.S.C.A., the Federal Employers' Liability Act.

(7) The trial court erred in refusing to submit certain special issues requested by Appellants concerning a drainage ditch near the area where Smith fell, inquiring whether the Santa Fe was negligent in permitting such drainage ditch to be open, and whether such negligence was the sole cause of Smith's injuries.

We are of the opinion that all of Appellants' points and contentions are without merit, and are respectfully overruled.

On October 7, 1974, at about 10 P.M. Plaintiff-Appellee Smith was injured when he slipped on fertilizer and fell on a rail. The injury occurred on railroad tracks leading to Erath Fertilizer and Farmers Milling premises located near the Santa Fe railroad depot at Stephenville, Texas, in Erath County. At the time of the accident, Smith was working as a brakeman for the Santa Fe.

The track upon which the injury occurred runs in a general north-south direction, and is a spur track (or side track) used for loading and unloading railway cars as opposed to a track used for through traffic.

At the time of the accident in question, Farmers Milling was in possession of premises consisting of 10,710 square feet located on the east side of the track upon which the accident occurred, pursuant to a lease from the Santa Fe. Said lease contained indemnity and other provisions more particularly hereinafter discussed.

On April 18, 1967, the Santa Fe leased a tract to The Borden Co. consisting of 26,828.2 square feet which adjoined the Farmers Milling track on the north, and which Borden premises were also located on the east side of the track where Smith was injured. Paragraph 11 of the lease from the Santa Fe to Borden provided in effect that lessee (Borden) was not permitted to sublet, assign, or transfer the lease or any interest therein without the written consent and approval in each instance by Lessor (Santa Fe). Nevertheless, in violation of this covenant with Santa Fe, Borden subleased or assigned the said premises to Erath Fertilizer for a ten-year period by instrument dated August 9, 1971, without the knowledge or consent of Santa Fe, and Santa Fe had no knowledge of such assignment until a considerable period of time after Smith's accident. At all times material to this controversy, Erath Fertilizer was in possession of the premises leased to Borden. Erath paid its rent to Borden, and Borden continued to pay its rent to the Santa Fe. Paragraph 19 of the lease from Santa Fe to Borden provided: "All the covenants and agreements of Lessee herein contained shall be...