Carter v. Harrison, 17054
| Decision Date | 07 November 1969 |
| Docket Number | No. 17054,17054 |
| Citation | 447 S.W.2d 704 |
| Parties | Earnest G. CARTER et al., Appellants, v. Arlie V. HARRISON et al., Appellees. . Fort Worth |
| Court | Texas Court of Appeals |
Cantey, Hanger, Gooch, Cravens & Munn, Herrick & Glazner, and John W. Herrick, Fort Worth, for appellants.
Crumley, Murphy & Shrull, and William M. Murphy, Fort Worth, for appellees.
This is a suit for monetary damages initiated by the plaintiff, Earnest G. Carter, against Blackie Watson Erectors & Riggers, Inc., and Arlie V. Harrison, its employee, for injuries sustained by him when a motor crane, belonging to the Watson Company and operated by Harrison, fell over while plaintiff was riding on the load of the crane. Houston Fire and Casualty Insurance Company intervened to recover benefits paid by it to the plaintiff under a workmen's compensation insurance policy. The case was tried to a jury. It found negligence on the part of Harrison for the manner in which he operated the crane and that such negligence was a proximate cause of the occurrence in question. In its answers to Special Issues Nos. 10 and 11, respectively, the jury found negligence on the part of the plaintiff in riding the 'platform' load on the occasion in question and that such negligence was a proximate cause of the occurrence in question
The plaintiff and intervenor filed a motion to disregard the answers to the contributory negligence and proximate cause issues and thereafter a motion for judgment on the verdict. The court overruled these motions and entered a take nothing judgment in favor of the defendants.
The appellants on appeal contend that the court erred in failing to sustain the motion to disregard the jury's answer to Special Issue No. 11 and to enter judgment for plaintiff notwithstanding the verdict. That the jury's response to Special Issue No. 11 has no support in the evidence; there was no evidence of probative force to sustain it; that such jury finding is against the overwhelming weight and preponderance of the evidence.
We affirm.
The appellants make no complaint concerning the jury's finding of negligence on the part of the plaintiff. The appeal is based solely upon the jury's finding that such negligence was a proximate cause of the occurrence in question. It is argued that the plaintiff's act of riding the load could not have been a proximate cause of the occurrence in question because the two essential ingredients of proximate cause, i.e., foreseeability and cause in fact, are absolutely absent. In presenting its argument appellants urge that the falling or tipping over of the crane was the 'occurrence in question' rather than the injuries sustained by the plaintiff.
The evidence in the case is summarized as follows:
On July 10, 1965, the plaintiff, an iron worker, was employed by Robert F. McCaslin. The latter was under contract with Gifford-Hill to dismantle a gravel shaker and platform to make way for the erection of a new structure. In order to complete his work under the contract, McCaslin leased a crane (35 ton capacity and a 90 foot boom) with an operator (Harrison) from the defendant, Watson. McCaslin explained to Harrison the work to be accomplished. The crane was placed about 10 to 12 feet away from the 45 foot structure which was to be dismantled. The crane's outriggers were deployed. Harrison, with the aid of 'flagging' by either McCaslin or the latter's foreman, began to lower various pieces from the top of the structure to the ground. Before commencing this work Arlie Harrison was told where on the ground the pieces were to be placed. After Harrison had taken down several 500 pound pieces, he picked up a load consisting of a gravel shaker weighing approximately 7,000 pounds. In doing this he lowered the shaker in the accepted safe and customary manner as follows: with the boom at about a 20 degree angle the hook was lowered. The shaker was affixed thereto. The shaker then was picked up by raising the boom to an angle of about 10 to 15 degrees. The crane was swung around about 45 degrees in a counterclockwise manner so that the load would clear the structure. Clear of the structure the operator, with the boom still at a 10 to 15 degree angle, began lowering the shaker. When the crane had swung around about 135 degrees, the load had been lowered to about 12 to 15 feet from the ground. Harrison then started increasing the angle of the boom itself until the load was about 60 to 65 feet from the crane. The technique employed on this occasion with the 7,000 pound load followed good safety procedure. The occurrence in question took place during the lowering of a subsequent load consisting of a platform 10 to 12 feet high and weighing approximately 9,000 pounds. An expert witness, with the aid of a crane capacity manual supplied by the manufacturer, testified that the weight of the load makes a difference in the capcity of the crane. This witness in reference to a 9,000 pound load testified that if an operator increased his boom angle from 10 to 15 degrees to a 45 degree angle before lowering it to the ground, the crane would 'tip over.' What the witness said with reference to the 9,000 pound load was not made with reference to the 7,000 pound load which was lowered without mishap. There was a substantial difference between the 7,000 pound load Harrison lowered from the structure and the second load (9,000 pounds) he was lowering when the accident happened.
After McCaslin signalled Harrison to hook onto the platform (9,000 pound load) he told the plaintiff, his employee, to stay on the platform and ride the load down and unhook it and to keep the platform off the boom as it was being lowered. With the plaintiff on the load, Harrison lifted it by raising the boom up to a 10 to 15 degree angle. When the boom had reached the 15 degree angle, McCaslin flagged Harrison to swing the crane around to clear the structure. When the crane had cleared the structure, instead of lowering the load as before, Harrison started increasing the angle of the boom (or in the parlance of the industry, 'began booming out'). The rig turned over and the plaintiff fell some 25 feet. Harrison testified he was 'following exactly the same procedure' as with the first load. 'There was no point to boom out.' The angle was still 10 to 15 degrees when it started tipping.
It is significant that during this line of questioning Harrison testified that when the load started tipping over while the boom was at a 10 to 15 degree angle, He did both. He was trying to get the load down.
The jury found in answer to Special Issue No. 2 that Harrison's booming out was not negligence and therefore whether he did or not is irrelevant to this appeal.
The importance in the difference between the 7,000 and the 9,000 pound loads was apparent to all of the witnesses. The jury could reasonably conclude and probably did that the plaintiff was negligent in undertaking to ride on the second load when it was obvious that it was about one ton heavier than the previous load and that his riding such load was a proximate cause of his injuries.
It is clear from Harrison's testimony regarding his actions before the accident that he was lowering the load in 'power down' rather than dropping the load which is characterized as a 'free fall.'
He could not let the load fall free because the plaintiff was riding on it. Harrison was not aware of plaintiff riding the load until he had swung the crane around 45 degrees from where he picked up the load.
Appellant contends that plaintiff being on the load had nothing to do with its tipping over because a crane with a 35 ton capacity was handling a 4 1/2 ton load.
The record reflects that the crane has a 35 ton capacity in only one position. The further out you are with the boom or with the load the less the capacity of the rig. Harrison said, 'We started lowering the load when we cleared the structure' and '* * * we were lowering this load is when it started tipping.'
The evidence further reflects that the soil collapsed under the crane's outriggers during the operation and that...
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Kerby v. Abilene Christian College
...decision, the court of civil appeals relied on two cases: Parrott v. Garcia, 436 S.W.2d 897 (Tex.1969), and Carter v. Harrison, 447 S.W.2d 704 (Tex.Civ.App.1969, writ ref'd n.r.e.). We do not consider those cases to be in point for the reason that Plaintiffs in both of those cases were foun......
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Woodard v. Marathon LeTourneau Co.
... ... Carter v. Harrison, 447 S.W.2d 704, 708 ... (Tex.Civ.App. Fort Worth 1969, writ ref'd n. r. e.) ... ...
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Caterpillar Tractor Co. v. Cropper
...n.r.e.); Rohan v. Baker, 470 S.W.2d 238 (Tex.Civ.App.-Houston [1st Dist.] 1971, writ ref'd n.r.e.); Carter v. Harrison, 447 S.W.2d 704 (Tex.Civ.App.-Fort Worth 1969, writ ref'd n.r.e.); Ingram v. Texas Industries, Inc., 396 S.W.2d 423 (Tex.Civ.App.-Fort Worth 1965, writ ref'd n.r.e.); James......
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Caterpillar Tractor Co. v. Cropper
...n.r.e.); Rohan v. Baker, 470 S.W.2d 238 (Tex.Civ.App.--Houston [1st Dist.] 1971, writ ref'd n.r.e.); Carter v. Harrison, 447 S.W.2d 704 (Tex.Civ.App.--Fort Worth 1969, writ ref'd n.r.e.); Ingram v. Texas Industries, Inc., 396 S.W.2d 423 (Tex.Civ.App.--Fort Worth 1965, writ ref'd n.r.e.); Ja......