Dodd v. Texas Farm Products
| Decision Date | 22 June 1978 |
| Docket Number | No. 1147,1147 |
| Citation | 567 S.W.2d 919 |
| Parties | Bernard DODD, Appellant, v. TEXAS FARM PRODUCTS, Appellee. |
| Court | Texas Court of Appeals |
Larry R. Daves, Tyler, for appellant.
William D. Perkins, Lufkin, for appellee.
Appellant brought suit against appellee for damages for personal injuries which were received by appellant on the premises of appellee. Trial was before a jury, and after a verdict was returned for appellant the trial court granted appellee's motion for judgment non obstante veredicto, hence this appeal by appellant.
Appellant alleged that he was injured when a retaining wall and bulk potash collapsed on him after he and a fellow workman had loosened the potash in a bin by blasting in order to move it to another bin, and that appellee was negligent in several respects. Appellee, among other allegations, pled that appellant was injured as a result of his own negligence or that of his fellow employee, or both; that conditions existed in the premises where appellant was employed which were open and obvious to appellant, and that appellant voluntarily assumed any risk involved in the work in which he was engaged. The jury found that appellee, its agents or employees, failed to inspect the retaining wall after the blast, that such failure was negligence, and such negligence was a proximate cause of his injuries; appellant was not found to be contributorily negligent. Damages of $86,000 were found by the jury.
Previously appellant brought suit against Twin City Fire Insurance Company in a worker's compensation action based on the same incident. The opinion of this court in that case is reported in 535 S.W.2d 416, and that of the Supreme Court is found in 545 S.W.2d 766.
Lone Star Phosphate Company is a corporation which ships phosphate rock from Florida and acidulates it with sulphuric acid which breaks it down into solvable form so as to make it available for plant food. Texas Farm Products Co. is a sister corporation with common officers and stockholders with Lone Star, and its plant is adjacent to that of Lone Star. Texas Farm Products manufactures and distributes feed and health products for animals. At times there was interchange of personnel between the two plants. Phosphate is a salt-type material, and after it is stored it will "set up hard, such that it's necessary to shake it loose," and a lowgrade, slow-burning type explosive is used to loosen the material such explosive made especially for that specific purpose.
Appellant had previously worked for appellee (approximately 15 years) but at the time of his injury (and for approximately 5 years before) he was an employee of Lone Star. At the time of his injury appellant was asked by his foreman, Jerry McShan, to go to Texas Farm to move potash or sulphate. McShan also took other employees of Lone Star to the Texas Farm premises. Appellant and McShan placed the explosives in a hole drilled in the sulphate and lit the fuse. Appellant testified and that he was then asked to "go in and move what little was blowed down." He further testified there was a retaining wall 10 or 12 feet above his head "hanging down" and that the blast
Appellant described events that followed: Clarence Riddle was McShan's superintendent, and was superintendent for both Lone Star and Texas Farm, according to appellant's testimony.
Appellant also testified that McShan In response to his counsel's question as to whether he had any choice in terms of whether he "could say no, I'm not going to do it, or anything else," appellant replied, He further said that when he told McShan he was not going back in there, he told him he thought the angle iron was bent, and they stood and looked at it, and he told McShan, "let's go back to the phosphate plant and leave it alone and that's when Mr. Riddle came up and they went out and was talking . . . ." In answer to the question whether Riddle looked at the retaining wall appellant said, and that no one warned him that the wall was going to fall. Appellant later testified that he did not think that Riddle even glanced at the bin.
McShan testified that he looked at the retaining wall as he was driving a pay-loader in to load up; that there was nothing wrong with the wall; that at one time he thought he saw it move, but he went on and said, "Well, it must not have moved," and he kept going. McShan further testified that appellant did not say anything to him about being afraid the retaining wall might fall.
In his first point appellant complains that the trial court erred in rendering judgment...
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Dodd v. Texas Farm Products Co.
...affirmed the judgment of the trial court, holding that there was no evidence to support the jury finding of Texas Farm's negligence. 567 S.W.2d 919. Because we find that there was some evidence to support the jury findings, we reverse the judgments of the court of civil appeals and the tria......