Bender v. Southern Pac. Transp. Co.
| Decision Date | 21 May 1980 |
| Docket Number | No. B-8660,B-8660 |
| Citation | 600 S.W.2d 257 |
| Parties | Hubbard Stallworth BENDER, Petitioner, v. SOUTHERN PACIFIC TRANSPORTATION COMPANY, Respondent. |
| Court | Texas Supreme Court |
Schmidt, Matthews & Brannon, W. Douglas Matthews, Houston, for petitioner.
Baker & Botts, James Edward Maloney, John C. Allen and Philip J. John, Jr., Houston, for respondent.
Hubbard Stallworth Bender brought this suit against Southern Pacific Transportation Company under the Federal Employers' Liability Act, 45 U.S.C.A. Section 51 (1972) ("FELA"), for damages sustained when he jumped from a moving railroad car which had derailed. The jury found that Southern Pacific was negligent in not properly inspecting a switch and that Southern Pacific did not fail to furnish Bender a reasonably safe place in which to work or reasonably safe equipment with which to work. The trial court rendered judgment for Bender on the finding of negligent failure to inspect the switch. The court of civil appeals reversed on the ground that the jury findings were in irreconcilable conflict. 582 S.W.2d 568. We hold that the findings are not in irreconcilable conflict, and accordingly reverse the judgment of the court of civil appeals and affirm that of the trial court.
Bender worked for Southern Pacific as a switchman. His responsibilities included positioning railroad cars and assembling and disassembling trains at the Englewood Yard in Houston. On November 13, 1975, Bender was working as foreman of a four-member crew. The crew assembled eleven railroad cars and a switch engine, which pushed the other cars from behind. In order to move to its destination in another part of the yard, the train had to pass over a switch known as the N-6-W (North No. 6 West) switch. One of the crew members, Bryan Hiser, walked over to the switch to line it properly, which he did by "throwing" the switch into position. Then Bender and two of the crew members stood on the lead car, while the engineer operated the engine at the rear of the train. The engineer was out of sight of Bender and the crew, and communicated with them by "walkie-talkie."As- § the cars were pushed along the track, the front wheels of the lead car passed over the N-6-W switch onto the proper line. The N-6-W switch then malfunctioned and "threw" underneath the car, causing the rear wheels of the lead car and the next one or two cars to derail. Bender called by walkie-talkie to the engineer to stop the train. When it did not stop, he jumped from the car, landed on a hard surface, and seriously injured his foot.
Bender sued Southern Pacific under the FELA, alleging Southern Pacific was liable for negligence in failing to provide him with reasonably safe equipment with which to work and a reasonably safe place in which to work. At trial, Bender attempted to show that the N-6-W switch was not properly inspected, repaired, or replaced; that the use of engine brakes rather than air brakes (train line brakes) when positioning the cars was improper; that the brakes were not timely applied; and that the communications system between switchman and engineer was unreliable.
The relevant special issues, definitions, and instructions given, and the jury answers, were as follows:
SPECIAL ISSUE NO. 1
Do you find from a preponderance of the evidence that on or before the occasion in question, the Southern Pacific Transportation Company, acting through its officers or employees other than Plaintiff Hubbard Bender, was negligent 1 with respect to (a) not properly inspecting the switch; (b) not properly repairing the switch; (c) not replacing the switch; (d) disconnecting the train line brakes; (e) not applying the brakes in time; (f) not providing an effective communications system for this crew?
Answer "Yes" or "No" on each line in Column 1. If any of your answers in Column 1 are "yes" then state whether you find from a preponderance of the evidence that any such negligence was a proximate cause of the occurrence in question. Answer "Yes" or "No" on the corresponding lines of Column 2.
Column 1 Column 2
Negligent Proximate
Cause
(a) Not properly inspecting the
switch Yes Yes
--------- ---------
(b) Not properly repairing the
switch No
--------- ---------
(c) Not replacing the switch No
--------- ---------
(d) Disconnecting the train line
brakes No
--------- ---------
(e) Not applying the brakes in
time No
--------- ---------
(f) Not providing an effective
communications system for
this crew No
--------- ---------
SPECIAL ISSUE NO. 2
Do you find from a preponderance of the evidence that on the occasion in question, the Southern Pacific Transportation Company, acting through its officers or employees other than Plaintiff Hubbard Bender, failed to furnish Hubbard Bender (a) a reasonably safe place in which to work or (b) reasonably safe equipment with which to work?
Answer "Yes" or "No" on each line in Column 1. If any of your answers in Column 1 are "Yes" then state whether you find from a preponderance of the evidence that any such failure to furnish was a proximate cause of the occurrence in question? Answer "Yes" or "No" on the corresponding lines of Column 2.
Column 1 Column 2
Failure to Proximate
Furnish Cause
(a) Place to work No
---------- ---------
(b) Equipment No
---------- ---------
You are instructed by the Court that a railroad owes a continuing nondelegable duty to its employees to provide them with a reasonably safe place in which to work. You are instructed that the term "reasonably safe place in which to work" as used herein, is meant such a place from a standpoint of safety to employees as would be furnished by an ordinary prudent railroad in the exercise of ordinary care to its employees under the same or similar circumstances.
You are further instructed by the Court that a railroad owes a continuing non-delegable duty to its employees to provide them with reasonably safe equipment with which to work in performing their duties. You are instructed that the term "reasonably safe equipment" as used herein, is meant such equipment from a standpoint of safety to employees as would be furnished by an ordinary prudent railroad in the exercise of ordinary care to its employees under the same or similar circumstances.
Based upon the jury finding of negligence in failure to inspect the switch, the trial court rendered judgment for Bender. The court of civil appeals reversed and remanded, holding that the jury responses to the first and second special issues were in irreconcilable conflict. 2
In reviewing the jury findings for conflict, the threshold question is whether the findings are about the same material fact. Pearson v. Doherty, 143 Tex. 64, 183 S.W.2d 453, 455 (1944). A court may not strike down jury answers on the ground of conflict if there is any reasonable basis upon which they can be reconciled. Little Rock Mfg. Co. v. Dunn, 148 Tex. 197, 222 S.W.2d 985, 989 (1949). The court must "reconcile apparent conflicts in the jury's findings" if reasonably possible in light of the pleadings and evidence, the manner of submission, and the other findings considered as a whole. Ford v. Carpenter, 147 Tex. 447, 216 S.W.2d 558, 562 (1949). Where the issues submitted "admit of more than one reasonable construction," that which avoids a conflict in the answers is generally adopted. See Merritt v. King, 66 S.W.2d 464, 466 (Tex.Civ.App. Texarkana 1933, writ ref'd). As we stated in Producers Chemical Co. v. McKay, 366 S.W.2d 220, 224 (Tex.1963), "It is our duty to harmonize jury findings when possible." We do not determine whether the findings may reasonably be viewed as conflicting; to the contrary, the question is whether there is any reasonably possible basis upon which they may be reconciled.
In the instant case, neither the correctness of the individual issues nor the propriety of the submission of both issues is before us. 3 Our inquiry is limited to the question of conflict, and our review of the jury findings is limited to a consideration of the factors before the jury. See Little Rock Mfg. Co. v. Dunn, 148 Tex. 197, 222 S.W.2d 985, 988-89 (1949) (); compare Indemnity Insurance Co. of North America v. Craik, 162 Tex. 260, 346 S.W.2d 830 (1961), with Employers Reinsurance Corp. v. Holland, 162 Tex. 394, 347 S.W.2d 605 (1961) ().
Southern Pacific contends that the finding of negligence in failing to inspect the switch conflicts with the negative finding on failure to furnish Bender reasonably safe equipment with which to work. It relies primarily on Missouri-Kansas-Texas R.R. Co. v. Shelton, 383 S.W.2d 842 (Tex.Civ.App. Dallas 1964, writ ref'd n. r. e.), cert denied, 382 U.S. 845, 86 S.Ct. 54, 15 L.Ed.2d 85 (1965). There, the plaintiff switchman was injured when he apparently fell as a result of stepping on debris in the area where he alighted from a moving train in the railroad yard. The court of civil appeals held that the jury finding that the railroad was negligent...
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