Del Bosque v. Heitmann Bering-Cortes Co.
| Decision Date | 15 December 1971 |
| Docket Number | BERING-CORTES,No. B--2862,B--2862 |
| Citation | 474 S.W.2d 450 |
| Parties | Pedro DEL BOSQUE, Petitioner, v. HEITMANNCOMPANY, Respondent. |
| Court | Texas Supreme Court |
Tabor & Ray, M. Jack Tabor, James T. Russell, Houston, for petitioner.
Baker & Botts, James R. Coffee, Houston, for respondent.
Pedro Del Bosque sued Heitmann Bering-Cortes Company for damages for personal injuries sustained by the plaintiff while attempting to operate an elevator in a building owned by defendant. The case was tried to a jury. On the basis of the jury's answers to certain special issues, the trial court rendered judgment that the plaintiff take nothing. The court of civil appeals reversed the trial court's judgment and remanded the cause for a new trial. 468 S.W.2d 522. Defendant does not complain of the court of civil appeals' judgment; plaintiff does. We affirm.
Plaintiff was an employee of a tenant in the building. He and a fellow employee, one Sylvester, entered the elevator and rode to the second floor. The elevator was activated by tiller ropes and sylvester acted as operator. When they reached the second floor, Sylvester lifted the gate and stepped out. The elevator stopped when the gate was lifted, but it was not level with the floor. Sylvester asked appellant to make it level. Appellant had never operated the elevator, but he had seen it done. He knew that it could be stopped by lifting the gate. He had seen other employees start it up and down by pulling on the ropes.
Plaintiff testified that when he pulled on the rope he expected the elevator to go up. Instead, it went down. He thought he was falling and he was scared. He caught hold of the second-floor gate and held on while the elevator proceeded to the first floor. He had previously lost some of his fingers on one hand and was unable to hold on until Sylvester could help him. His fall resulted in severe injuries.
The relevant jury findings may be summarized as follows: (3) The defendant was negligent in failing to have the tiller ropes properly marked, (4) which negligence was a proximate cause of the occurence; (7) the plaintiff was negligent in holding onto the elevator gate at the time and on the occasion in question, and (8) his negligence was a proximate cause of his fall; (13) the plaintiff was confronted with an emergency on the occasion, and (14) after the emergency arose he acted as a person of ordinary prudence would have acted; (15) the emergency was not the sole proximate cause of the occurrence. The jury was instructed that 'emergency' meant 'a condition which arises suddenly and unexpectedly, requiring immediate action without time for deliberation and not proximately caused by the negligence of the said Pedro Del Bosque.'
We have found in the record no indication of the theory made the basis of the trial court's 'take nothing' judgment. The court of civil appeals' judgment of reversal and remand was predicated upon its conclusion that the jury's verdict contained an irreconcilable and fatal conflict. Said by the court to be in conflict are the findings that (7) the plaintiff was negligent in holding onto the elevator gate, and (14) after the emergency arose, the plaintiff acted as a person of ordinary prudence would have acted. Plaintiff insists that the two jury findings are not fatally conflicting, and that he is entitled to have the judgments of both courts below reversed and judgment rendered in his favor for the amount of his damages. The issue thus drawn is whether the indicated jury findings are in irreconcilable and fatal conflict. We agree with the court of civil appeals' conclusion that they are.
The jury findings, put in context with the facts recited in the forepart of this opinion, establish that the emergency with which plaintiff was confronted was the sudden and unexpected descent of the elevator when he expected it to ascend. It was after this emergency arose that plaintiff grabbed and held onto the gate while the elevator descended to the first floor. If we give effect to the jury's answer to issue no. 7 and disregard the answer to issue no. 14, a judgment for defendant is required; but if we give effect to the answer to issue no. 14 and disregard the answer to issue no. 7, a judgment for plaintiff is required. These results of application of the proper legal test in the posture of this case establish that the two answers are in fatal conflict. Little Rock Furniture Mfg. Co. v. Dunn, 148 Tex. 197, 222 S.W.2d 985 (1949); Cf. Bradford v. Arhelger, 161 Tex. 427, 340 S.W.2d 772 (1960).
Plaintiff argues that the finding that he was negligent in holding onto the elevator...
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