Christian v. Dishongh

• Decision Date: 17 December 1969
• Docket Number: No. 312,312
• Citation: 449 S.W.2d 823
• Parties: Earl CHRISTIAN, d/b/a Christian Truck Lines, et al., Appellants, v. Robert Mike DISHONGH, Appellee. (14th Dist.)
• Court: Texas Court of Appeals

Page 823

449 S.W.2d 823

Earl CHRISTIAN, d/b/a Christian Truck Lines, et al., Appellants, v. Robert Mike DISHONGH, Appellee.

No. 312.

Court of Civil Appeals of Texas,

Houston (14th Dist.).

Dec. 17, 1969.

Rehearing Denied Jan. 14, 1970.

John M. O'Quinn, Baker, Botts, Shepherd & Coates, Houston, for appellants.

W. P. Bondies, Houston, for appellee.

BARRON, Justice.

This is an appeal from an order of the trial court overruling defendants' pleas of privilege. The lawsuit was filed in Brazoria County, Texas, alleging personal injuries as the result of negligence on the part of the defendant, Daniel Groff, while in the course and scope of his employment for Earl Christian, doing business as Christian Truck Lines. Both defendants reside in Harris County, Texas. By controverting affidavit, plaintiff, Robert Mike Dishongh, alleged that venue was proper in Brazoria County under subdivision 9a of Art. 1995, Vernon's Ann.Tex.Civ.St. The appellants are Groff and Earl Christian, d/b/a Christian Truck Lines .

Appellants contend that they did not owe Dishongh a duty to exercise ordinary care under the circumstances; that there was no evidence of negligence on the part of either defendant; or no evidence that they should have foreseen the accident which occurred, and that it was not shown that the conduct of Groff was the cause in fact of the accident.

On the morning of the accident the appellant Groff, driving a truck for Christian, drove a load of concrete pilings to a construction site in Brazoria County located on property owned by Dow Chemical Company, but occupied by the appellee's employer, Coastal States Construction Company. The truck driven by Groff was the first to arrive at the site on the date of the accident. Other trucks, similarly loaded, were expected at the site within a short time, and Groff knew this. Croff situated his truck at the appointed place and it was unloaded by the appellee and co-employees of Coastal States. After unloading was finished, Groff began rigging his pole-trailer in the customary manner for the return trip . He telescoped the two pipes of the trailer, one inside the other, to bring the end of the trailer closer to the tractor-truck. He then inserted a pin at the appropriate place through the two pipes. Groff testified that someone helped him put the pin in and that there was nothing unusual about being helped in this manner. He further testified that he did not believe he would have objected to being helped with the trailer, because people had helped him telescope the trailer in the past. He testified, however, that he did not ask for help. Next, Groff rigged a safety chain from the area of the rear wheels of the truck to the end of the pole-trailer in order to secure the trailer's collapsed position. He used a boomer to take the slack out of the safety chain. The boomer consisted of two hooks on the end of the jaws which were placed into links on the safety chain, and a handle whose movement causes the jaws to be pulled together, with the result that two links in the safety chain are drawn together, thus taking up the slack.

In order to close the jaws on the boomer, Groff placed a 'cheater pipe' over the end of the boomer handle. He stated that before closing the boomer handle he had to let out a length of the chain and that he was having some trouble getting it closed. Groff stated that he had only three or four inches of the boomer handle covered by the cheater pipe. The cheater pipe was two and a quarter inches on the inside diameter and fit fairly snugly over the end of the boomer handle. The farther down the cheater pipe was on the boomer handle, the less chance there would be of it slipping off. He further said that he could have put the cheater pipe three inches farther down on the boomer handle without running the risk of the cheater pipe and the boomer handle becoming stuck. The cheater pipe was between two and one-half and three feet long. Groff's hands were positioned within a foot of the end of the pipe farthest away from the boomer handle. The boomer and boomer handle were situated between the front and rear wheels, but so close to the front wheels that there was not room enough to stand between the wheels and the boomer handle to pull on the cheater pipe. Pushing toward the truck on the cheater pipe was required as opposed to pulling on it.

After the truck was unloaded, the appellee, Dishongh, and a co-employee, Lambert, were instructed by their foreman to assist the truck driver in rigging his pole-trailers so that Groff could leave the premises, or so that the truck could get out of the way. Groff knew that if a truck was stalled or taking up too much time, it would be important for it to get moved out so other trucks could come in and get their unloading done. Groff was attempting to boom down the safety chain at the time of the accident and had been having trouble doing this. Appellee and his co-employee, Lambert, after receiving the instructions from their foreman, walked behind the rear wheels of the truck and around toward Groff as he was pushing on the cheater bar. As Lambert and Dishongh approached Groff from the back of the truck, Groff looked directly at them and continued to watch them as they proceeded toward him. Groff testified that he saw them when they walked up. Dishongh testified that Groff looked at them when they were about 10 or 15 feet away. When Dishongh and Lambert arrived at a place immediately behind the boomer handle and cheater bar, Groff testified that Lambert placed a hand or hands on the bar and that Groff felt an additional pressure on the pipe. Appellee did not touch the cheater pipe and could not say whether or not Lambert touched it. At this point the cheater pipe slipped off the end of the boomer handle, causing the...