Fort Worth & Denver Ry. Co. v. Coffman, 16671

• Decision Date: 03 December 1965
• Docket Number: No. 16671,16671
• Citation: Fort Worth & Denver Ry. Co. v. Coffman, 397 S.W.2d 544 (Tex. Ct. App. 1965)
• Parties: FORT WORTH AND DENVER RAILWAY COMPANY, Appellant, v. Harold W. COFFMAN, Appellee.
• Court: Texas Civil Court of Appeals

Page 544

397 S.W.2d 544

FORT WORTH AND DENVER RAILWAY COMPANY, Appellant, v. Harold W. COFFMAN, Appellee.

No. 16671.

Court of Civil Appeals of Texas, Fort Worth.

Dec. 3, 1965.

Rehearing Denied Jan. 7, 1966.

Tilley, Hyder & Law, Fort Worth, Friberg & Parish, Wichita Falls, Touchstone & Sampels and M. D. Sampels, Dallas, for appellant.

Rumph, Ivy & Karpenko, Fort Worth, Philip S. Kouri, Wichita Falls, Helm, Jones & Pletcher, and George E. Pletcher, Houston, for appellee.

RENFRO, Justice.

Plaintiff, Harold W. Coffman, in an action arising under the Federal Employers' Liability Act, recovered a verdict and judgment in the amount of $160,000 from the Fort Worth and Denver Railway Company.

Evidence was introduced by and for plaintiff that he was injured on February 18, 1961, when the caboose in which he was riding derailed. On that date he, a freight conductor, was advised by supervisors that he and his crew were 'doubling back' to Wichita Falls from Fort Worth with a train which was already made up. A brakeman noticed a car he considered unsafe for the run. Plaintiff inspected the car, saw that the drawbar had been worked on and was not in a normal position. The drawbar pointed downward instead of being parallel, its normal position. Four new bolts were in place. Plaintiff reported to the inspector. The car inspector said the car had been 'bad-ordered', placed on the 'rip track', repaired and okayed and was safe to move. Plaintiff then informed the yard master the car was not safe. The yard master told him the car had been repaired and okayed by him and said: 'You are taking it-you are moving it.' There were 122 cars in the train. The car in question was placed last except for the caboose. After the train had traveled approximately 49 miles, 'all of a sudden the car in question parted from the train and it derailed the front end of the caboose. * * * it was a terrific impact.' Just prior to the derailment there was a thud, or loud noise under the caboose as if something had hit under it. The draw works had fallen off the front end of the defective car. After derailment it was still coupled with the caboose. After the car and the caboose came to a stop the drawbar on the defective car was completely gone; all the draw works were gone, the front end of it was setting up on the drawbar of the car ahead.

The jury found in answer to special issues Nos. 1 and 2 that defendant failed to furnish plaintiff a reasonably safe place to work, and such failure was a proximate cause of the occurrence; and in answer to issues Nos. 3 and 4 defendant failed to furnish plaintiff safe equipment and such failure was a proximate cause. In issues Nos. 7 and 8 the jury found that defendant failed to make such repair on the car as would have been made by a person of ordinary prudence in the exercise of ordinary care under the same or similar circumstances, and such failure was a proximate cause. It was also found that the occurrence was not the result of an unavoidable accident.

Defendant contends the court erred in refusing to instruct a verdict against plaintiff, and in refusing to hold as a matter of law that plaintiff was negligent.

The jury acquitted plaintiff of contributory negligence. It found for plaintiff on issues inquiring as to defendant's conduct.

The Federal Courts have broadened the jury's function in F.E.L.A. cases so that very little evidence is required to uphold a jury verdict of negligence. Bailey v. Central Vermont Ry., 319 U.S. 350, 63 S.Ct. 1062, 87 L.Ed. 1444; Rogers v. Missouri Pacific R. Co., 352 U.S. 500, 77 S.Ct. 443, 1 L.Ed.2d 493; Lavender v. Kurn, 327 U.S. 645, 66 S.Ct. 740, 90 L.Ed. 916; Deen v. Gulf, Colorado & Santa Fe Railway Co., 353 U.S. 925, 77 S.Ct. 715, 1 L.Ed.2d 721.

Under the above authorities we hold the evidence sufficient to support the verdict and judgment.

Defendant urges reversal because the verdict did not contain any findings of negligence in support thereof and was not supported by the pleadings.

The court charged the jury that the term 'reasonably safe place to work' is such a place as an ordinarily prudent railroad company would have furnished its employees under the same or similar circumstances.

The jury found that defendant failed to furnish plaintiff a reasonably safe place in which to do his work, and that such failure was a proximate cause of the occurrence made the basis of the lawsuit.

The jury also found that the defendant failed to furnish plaintiff safe equipment with which to do his work, and such failure was a proximate cause of the occurrence.

Similar objections were made to the charge and like points of error were urged in Texas & New Orleans Railroad Company v. Arnold, 381 S.W.2d 388 (Beaumont Civ.App., 1964). In its opinion the court said: 'The points are without merit. * * * It has been consistently held that the standards or customs of a particular enterprise might themselves be negligent because they did not rise to the standard of the ordinarily prudent person. Ordinary care may be something above and beyond the customs and standards ordinarily incident to the organization or a given business. * * * Since the jury was required to measure the conduct of appellant in respect to the railroad industry, it is in no position to complain. If it exercised less care than was exercised by reasonably prudent railroad companies, it was guilty of negligence. That similar instructions have not been found erroneous see Taylor v. White, 212 S.W. 656 (Com.App. 1919, judg. adopted); Texas Coca-Cola Bottling Co. v. Kubena, 109 S.W.2d 1098 (n.w.h. Civ.App. 1937); Houston & T. C. R. Co. v. Alexander, 103 Tex. 594, 132 S.W. 119 (1910); San Antonio St. Ry. Co. v. Caillonette, 79 Tex. 341, 15 S.W. 390 (1891); Great Atlantic & Pacific Tea Co. v. Evans, 142 Tex. 1, 175 S.W.2d 249 (1943).'

The Supreme Court dismissed the appeal in the above case because the Railroad had not timely perfected its appeal to the Court of Civil Appeals. Texas & New Orleans Railroad Co. v. Arnold, Tex., 388 S.W.2d 181. In the majority opinion, however, it was stated: 'Railroad, petitioner here, urges a reversal because the trial court submitted two issues twoo broadly, improperly defined the term 'suitable equipment,' * * *. We are inclined to the view that these points would not require a reversal, * * *.' In a dissenting opinion (as to timely appeal), Justice Greenhill agreed with the majority on the proper submission of the attacked issues. Said he, 'I would affirm the judgments of the courts below. Under the broad holdings of the Supreme Court of the United States in F. E. L. A. cases, the jury issues with regard to the railroad's failure to furnish suitable equipment to the plaintiff, answered by the jury favorably to the plaintiff, will support the judgment for the plaintiff.'

The points of error are overruled.

Defendant contends the court erred in allowing Dr. King to testify concerning plaintiff's history.

While testifying Dr. King was asked: '* * * your testimony here is based on your findings and examination and treatment rather than on the history?' He answered, 'That is true.' It was also shown that when plaintiff first went to Dr. King (3-22-61) he was given some treatment. In testifying as to his expenses, charges, etc., for time spent in court, x-rays for plaintiff, office calls and examinations, he was asked, 'That, of course, includes all treatment?' The doctor answered, 'Oh, yes, that includes the total.'

The evidence is sufficient to show that plaintiff went to Dr. King, not merely for an examination but for the purpose of diagnosis and treatment.

The opinion of a physician or surgeon as to the condition of an injured or deceased person is not rendered incompetent by the fact that it is based upon the history of the case given by the patient to the physician or surgeon on his examination of the patient, when the examination was made for the purpose of the treatment and care of the patient. Federal Underwriters Exchange v. Carroll, 130 S.W.2d 1101 (Beaumont Civ.App., 1939, no writ hist.); Missouri, K. & T. Ry. Co. of Texas v. Rose, 19 Tex.Civ.App. 470, 49 S.W. 133, (1898, ref.); Texas General Indemnity Co. v. McNeill, 261 S.W.2d 378 (Beaumont Civ.App., 1953, no writ hist.); Austin Road Company v. Thompson, 275 S.W.2d 521 (Fort Worth Civ.App., 1955, ref., n. r. e.).

Defendant argues that issue No. 7, as framed, is a comment by the court on the weight of the evidence. In view of the undisputed evidence as to what was seen, said and heard in defendant's yards at Fort Worth, we think the issue was not a comment on the weight of the evidence.

In any event the judgment is amply supported by other issues which we hold were properly submitted.

In other points the defendant contends the verdict was so excessive the trial court should have granted a new trial or granted a remittitur.

At the time of the accident plaintiff was 49 years of age and was earning about $9,000 per year. The accident occurred on February 18, 1961.

Plaintiff started to work for defendant in 1936 cleaning coaches. Since that time he had no other employer. He was promoted to conductor in 1943, and continued as a conductor until December, 1963. During the years preceding the accident in question he lost a total of 14 days because of slight injuries. He had regular physical examinations throughout his period of employment with defendant and was always found fit for duty. Soon after the derailment plaintiff lost consciousness and remained unconscious until sometime the next day. He was in a hospital in Wichita Falls from February 19 until March 1, then sent to a hospital in Fort Worth for 2 1/2 days, then returned home. He continued to take treatment but returned to work in April. After resuming work he had headaches, his balance was bad and he suffered from dizziness. He transferred to a job in Fort Worth (same employer) where the hours on duty were longer and the pay better, because there were more...