August v. Texas & N. O. R. Co.

• Decision Date: 04 February 1954
• Docket Number: No. 4939,4939
• Citation: 265 S.W.2d 148
• Parties: AUGUST v. TEXAS & N. O. R. CO.
• Court: Texas Court of Appeals

Page 148

265 S.W.2d 148

AUGUST v. TEXAS & N. O. R. CO.

No. 4939.

Court of Civil Appeals of Texas, Beaumont.

Feb. 4, 1954.

Rehearing Denied Feb. 24, 1954.

Faver & Barnes, Jasper, for appellant

Cecil, Keith & Mehaffey, Beaumont, for appellee.

ANDERSON, Justice.

This suit was brought by appellant, Henry August, to recover damages for personal injuries which he claims to have sustained on February 3, 1950, while in the course of his employment with appellee, Texas and New Orleans Railroad Company. It was brought under the Federal Employers' Liability Act, 45 U.S.C.A. § 51 et seq. Trial resulted in an instructed verdict and a judgment in favor of the defendant railroad company. The only question for review is whether on the evidence adduced the trial court erred in instructing a verdict for the defendant.

Appellant claims to have injured his back while manually lifting a coupler on one of appellee's empty tank cars. He was lifting the coupler so that a jack could be inserted under it for the purpose of raising one end of the body of the car. He alleges that appellee was negligent in that it 'failed to provide proper equipment for the use of plaintiff in lifting the end of the car at the time and place in question'; in that 'the equipment supplied by defendant for the use of plaintiff at the time and place in question was inadequate'; in that 'defendant failed to provide a place and surroundings that was reasonably safe for the plaintiff to work at the time and place in question'; in that 'the defendant failed to provide a second jack to raise the end of the car high enough for the available jack to be placed under the end of the car'; in that 'defendant, through its duly authorized agents and servants, required plaintiff to work under the circumstances then prevailing without adequate number of employees to assist plaintiff'; and in that 'the defendant, through its agents and servants, required plaintiff to undertake to lift a load that was too heavy for the strength of the plaintiff.'

The following summary sufficiently presents the evidence in the light most favorable to appellant:

Appellant was employed in appellee's repair shop as a 'repacker,' and had been so employed for more than four months before the date of his alleged injury. Among his duties were those of removing old or used cotton waste from the journal boxes of railroad cars and repacking the journal boxes with new waste, and of inspecting the journal bearings and replacing them when necessary.

Journal bearings are concave on one side so as to form a half cylinder. They fit over those portions of the car axles which are on the outward sides of the wheels. These portions of the axles (commonly referred to as journals), together with their bearings and oiling devices, are each separately housed in a metal box which is known as a journal box. The journal bearings, it appears, support the weight, or at least some substantial portion of it, of both the body of the car and the superstructures of the trucks on which the body of the car rests.

The body of a railroad car, which is a unit whthin itself, is supported at each end by a unit that is termed a truck, and is held in place by a vertical shaft. Either of its ends can be raised and the trcuk withdrawn from under it. The trucks are each comprised of two axles, four wheels, and their superstucture. The superstructure of a truck unit weighs several hundred pounds, and a jack must be made use of in raising it, even after the body of the car has been raised.

In order to inspect the journal bearings of a car it is necessary that the pressure which is normally imposed on them by the weight of the body of the car and of the superstructure of the car truck be first relieved. This is accomplished by the use of jacks, and because of the way in which the cars are constructed it can be accomplished in either of two ways: (1) The pressure can be relieved on one bearing at a time by jacking up the journal box in which such bearing is housed. This is done with a small jack which is designed for the purpose, known as a journal jack. (2) The pressure can be relieved on four bearings at a time by first jacking up one end or the body of the car with one or more large jacks, and by then jacking up the superstructure of the car truck with a smaller jack known as a track jack.

The latter method appears to have been the one ordinarily made use of by the appellant. He said that he could not by the use of journal jacks perform his duties with the dispatch required, because with them eight separate jacking operations are required. He was expected, or so he testified, to complete his work on a car within the course of two hours.

When raising the end of a loaded car, the appellant used two 50-ton-capacity jacks, one under each side of the car. When raising the end of an empty car, however, it appears to have been his practice to use only a single 35-ton-capacity jack, inserted under one of the car's couplers. The couplers (the devices by which one car is connected to another) are centrally located in the ends of the body of the car, and are capable of limited motion in a vertical plane. For varying reasons it is necessary at times to raise a coupler slightly, before a 35-ton-capacity jack can be inserted under it; and it was while he was thus engaged that appellant alleges he was injured.

The appellant testified that ordinarily he used a track jack to raise a coupler when it was necessary to do so in order to get the larger 35-ton-capacity jack under the coupler, but that on the particular occasion all of the track jacks were being used by other employees. A number of cars which required wheel changes appear to have been placed on the repair track that morning, and the track jacks which were in usable condition were being used by the car repairmen in changing the wheels.

It appears that normally the appellee kept some 14 to 18 jacks of various sizes available for use in carrying on its work (journal jacks, track jacks, 35-ton-capacity jacks, and 50-ton-capacity jacks), among them eight track jacks. Presumably, however, there were only seven track jacks in usable condition on the day appellant claims to have been injured, for one had been prepared for shipment to Houston to be repaired. The jacks were kept in a tool house, and appellee's employees were at liberty to use such of them as they needed in their work. It also appears likely from the evidence that one or more journal jacks had been assigned to appellant for his own separate use.

The appellant testified that before undertaking to lift the coupler manually, he looked in the tool house and about the yard for a track jack, but found none in usable condition that was not in use. He did not, however, report this temporary shortage of track jacks to appellee's foreman or to any other of appellee's responsible agents or representatives, nor did he request of the foreman or any other of appellee's responsible agents or representatives that additional workmen by assigned to help him. Neither did he request any of his fellow employees, of whom there were some twelve working nearby, to assist him in lifting the coupler. He only requested a fellow employee who happened to be passing by to insert the jack under the coupler when he himself should raise the coupler. He said that his was considered to be a one-man's job, and that he would have expected to be so informed by his fellow employees if he had asked any of them to help him lift the coupler.

It is to be inferred from the evidence that the 35 and 50-ton-capacity jacks can always be inserted under the sides of a car without the aid of any other type of jack; and it affirmatively appears that when journal jacks are used there is no occasion to jack up the body of the car separately. The evidence does not disclose that there was any shortage of jacks of either of these types upon the occasion of appellant's alleged injury. The appellant's explanation of his failure to use two 35-ton-capacity jacks, one on each side of the car, was that this method of raising an empty car had never been demonstrated to him.

The appellant estimated the weight of a coupler to be in excess of 200 pounds, and described the lifting of one of them as 'a heavy lift' for one man. He testified, however, that prior to the date of his alleged injury he had lifted other couplers by hand, and had experienced no difficulty in doing so. He had also seen other of appellee's employees lift couplers by hand on several occasions.

No one either ordered, directed or requested appellant to raise the coupler by hand on the occasion of his alleged injury. Neither appellee's foreman nor any other with supervisory control over appellant appears to have been present at the time. It does not appear, in fact, that appellant had ever been specifically instructed or directed to lift a coupler by hand. He did testify, however, that that means of raising a coupler when no track jack was available had been demonstrated to him by John Joseph, a fellow employee who in the beginning had been assigned the task of instructing him regarding the duties of a 'repacker' and their manner of performance. He also testified that at the time he was placed under Joseph's tutelage, he was directed by appellee's foreman to follow...