Batey v. Greenwood Floral Co.

• Decision Date: 28 January 1938
• Docket Number: No. 13661.,13661.
• Citation: 113 S.W.2d 647
• Parties: BATEY et al. v. GREENWOOD FLORAL CO.
• Court: Texas Court of Appeals

Page 647

113 S.W.2d 647

BATEY et al. v. GREENWOOD FLORAL CO.

No. 13661.

Court of Civil Appeals of Texas. Fort Worth.

January 28, 1938.

Rehearing Denied February 25, 1938.

Appeal from District Court, Tarrant County; Walter L. Morris, Judge.

Action for the death of William Batey, deceased, by Mrs. Eunice Batey, a feme sole, the surviving wife of deceased, and others against the Greenwood Floral Company. Judgment for the defendant as against all plaintiffs, and named plaintiff appeals.

Affirmed.

Houtchens & Houtchens and J. Harold Craik, all of Fort Worth, for appellant.

Todd, Crowley & Thompson, S. A. Crowley, W. R. Thompson, Jr., and George C. Kemble, all of Fort Worth, for appellees.

DUNKLIN, Chief Justice.

William Batey, while working as an employee of the Greenwood Floral Company, was killed as the result of being crushed against a wall of one of the company's buildings, by a motortruck, while backing for the purpose of unloading dirt therefrom, to be used by the company in connection with its floral business. Henry Lynn, another employee of the company, was driver of the truck, and he and the deceased and Joe Batey, brother of deceased, were employed to procure and haul the dirt from another locality and dump it near the company's office building. It was unloaded by dumping the dirt after the boards in the bottom and side of the truck were lifted. On the occasion of the accident, a load of dirt had been hauled to the place where it was to be dumped. The deceased got off the truck and went behind it, signaling the driver how far to back the truck, in order to dump the dirt at the proper place, and also to lift the boards from the bottom and sides of the body of the truck, to let out the dirt. Henry Lynn, the driver of the truck, then backed it too far, and Batey was caught between the rear end and the wall of the building, and killed instantly.

This suit was instituted by Mrs. Eunice Batey, a feme sole, the surviving wife of William Batey, deceased, and C. D. Batey and wife, Leeida Batey, parents of the deceased, against defendant, Greenwood Floral Company, to recover damages resulting from the death of William Batey. A judgment was rendered in favor of the defendant as against all the plaintiffs, from which Mrs. Eunice Batey alone has appealed.

The trial was before a jury, and allegations of negligence of defendant, on which a recovery was sought by plaintiffs, are reflected in the special issues submitted to the jury, hereinafter referred to.

In answer to the first three special issues, the jury found that immediately prior to the accident the defendant's truck driver suddenly drove the truck backward against the brick wall in question, and that such negligence was a proximate cause of the injury to the deceased, William Batey.

Following are other issues submitted for the findings of the jury thereon:

"Special Issue No. 4. Do you find from a preponderance of the evidence that the foreman of the defendant prior to the occasion in question had instructed the deceased William Batey to get behind the truck in attempting to unload the same? Answer `yes' or `no.' Answer: No. * *

"Special Issue No. 7. Do you find from a preponderance of the evidence that the deceased William Batey in placing himself at the back of the truck prior to the unloading of the same on the occasion in question was not guilty of negligence, as that term has been defined for you above? Answer `He was guilty of negligence' or `He was not guilty of negligence' as you find the facts to be. Answer: He was guilty of negligence."

In answer to issue No. 8, the jury found that such negligence on the part of the deceased was not the sole proximate cause of his injury.

Issues Nos. 9 and 10 read as follows:

"Special Issue No. 9. Do you find from a preponderance of the evidence, that such negligence, if any you have found, on the part of the deceased William Batey, as inquired about in issue No. 7 above, was a proximate cause (as that term has been defined for you above) of the injury to the said William Batey? Answer `yes' or `no.' Answer: Yes.

"Special Issue No. 10. Do you find from a preponderance of the evidence that immediately prior to the accident in question that the deceased William Batey signalled the driver of the truck to proceed backwards? Answer `yes' or `no.' Answer: No."

In answer to issue No. 14, the jury assessed damages sustained by plaintiff, Mrs. Eunice Batey, resulting from the death of her husband, at the sum of $2,000.

Following is defendant's special requested issue No. 3: "Do you find from a preponderance of the evidence that the deceased William Batey failed to give a signal to the driver of the truck in question in time for the driver of such truck to stop the same before striking deceased? Answer yes or no. Answer: No."

Defendant's special requested issue No. 4 was as follows:

"(a) Do you find from a preponderance of the evidence that deceased William Batey immediately prior to the accident and injuries in question failed to step clear of the approaching truck? Answer yes or no. Answer: Yes.

"(b) If you have answered the foregoing question `yes' and only in that event then answer the following question:

"Question: Do you find from a preponderance of the evidence that such failure, if any, was negligence? Answer yes or no. Answer: No."

In her motion for new trial, appellant alleged misconduct of jury, in that during their deliberations in the jury room, and while the jury was considering their answer to issue No. 4, John Atkins, one of the jurors, made a statetment to the effect that he himself was an experienced truck driver, and from his experience he knew that it was not customary for those in charge of trucks to be given any such instructions as referred to in that issue. Upon hearing that motion, four jurors...