City of Panhandle v. Byrd, 2072 - 6876.
| Decision Date | 23 June 1937 |
| Docket Number | No. 2072 - 6876.,2072 - 6876. |
| Citation | 106 S.W.2d 660 |
| Parties | CITY OF PANHANDLE v. BYRD. |
| Court | Texas Supreme Court |
Defendant in error, J. H. Byrd, will be called plaintiff, and plaintiff in error, City of Panhandle, will be called defendant. In the trial court judgment was rendered in favor of plaintiff against the defendant for damages for personal injuries and the Court of Civil Appeals affirmed that judgment. 77 S.W.(2d) 904.
Plaintiff and one W. E. Wright were engaged in doing some work on unpaved streets in the City of Panhandle. The equipment used by them was a tractor operated by the foreman Wright and a grader operated by plaintiff. The particular enterprise in which they were engaged at the time plaintiff sustained his injuries was the cleaning out of ditches or gutters alongside one of the streets. At different places along these ditches culverts had been placed to form approaches to the premises of abutting property owners. In order to clean the ditches it was sometimes necessary to lift these culverts out of place temporarily. The method employed for removing the culverts was to uncouple the tractor from the grader, hook one end of a chain to the tractor and the other end around a sill of the culvert, and then start the tractor in motion. To accomplish this they were furnished a long chain having a hook on each end. A short time before the accident Wright and Byrd uncoupled the grader from the tractor and removed some of these culverts. After removing them they left the chain in the street, drove the tractor back, and coupled onto the grader. In proceeding down the street with their work, they passed over this chain, whereupon Wright brought his tractor to a stop, and he and the plaintiff together dragged one end of the chain up to the grader and hooked it to the platform on the grader upon which plaintiff stood to operate same. They then moved ahead with their work, the tractor being in the lead pulling the grader and the chain trailing on the ground behind the grader with a hook on the trailing end. Several blocks ahead of them was a culvert which consisted of a 20-foot joint of 12-inch oil well casing laid in the ditch and covered over with soil. When they reached this culvert, Wright turned the tractor out slightly to pass it by and plaintiff guided the grader in the same manner, but in some way the hook on the trailing end of the chain caught in the end of the casing with the result that the platform on which plaintiff was standing was jerked loose from the grader and he fell to the ground sustaining the injuries of which he complains.
Two grounds of negligence were alleged, as follows: (1) In dragging the chain behind the grader, and (2) in having the platform upon which plaintiff was required to stand to operate the grader insecurely fastened thereto. No issues were submitted or requested on the second alleged ground of recovery and the judgment rests alone upon the ground that the dragging of the chain behind the grader constituted negligence on the part of the city. In answer to special issues the jury found negligence in the respect just mentioned, which was a proximate cause of the injury, and assessed the damages at $5,405.20. A remittitur of $405.20 was filed in the trial court and judgment rendered for $5,000. The jury further found that the injury received was not the result of an unavoidable accident, and in favor of the plaintiff on the issues of contributory negligence and assumed risk.
To aid the jury in answering the issue of proximate cause, the court defined that term, including in the definition this language: "* * * it ought to have...
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