Foster Lumber Co. v. Rodgers

• Decision Date: 02 March 1916
• Docket Number: (No. 74.)
• Citation: 184 S.W. 761
• Parties: FOSTER LUMBER CO. v. RODGERS et al.<SMALL><SUP>*</SUP></SMALL>
• Court: Texas Court of Appeals

184 S.W. 761

FOSTER LUMBER CO. v. RODGERS et al.^*

(No. 74.)

Court of Civil Appeals of Texas. Beaumont.

March 2, 1916.

On Motion for Rehearing, March 23, 1916.

Appeal from District Court, Hardin County; J. Llewellyn, Judge.

Action by J. B. Rodgers against the Foster Lumber Company and others. From a judgment for the plaintiff, the named defendant appeals. Affirmed.

N. C. Abbott, of Houston, and W. W. Dies, of Kountze, for appellant. Smith, Crawford & Sonfield and Howth & Adams, all of Beaumont, for appellee.

MIDDLEBROOK, J.

This cause was brought in the district court of Hardin county, Tex., by J. B. Rodgers, against the Foster Lumber Company, the Kirby Lumber Company, and Gulf, Colorado & Santa Fé Railway Company, for damages caused by motor car wrecked, which was the result of spreading of rails, in consequence of bad ties. The motor car was the property of the Kirby Lumber Company, and was operated by one of its employés. Plaintiff, J. B. Rodgers, was a tie inspector for the Gulf, Colorado & Santa Fé Railway Company, and was out inspecting ties when the injury occurred. The Foster Lumber Company was furnishing ties to the Kirby Lumber Company by virtue of contractual relations between them, and the Kirby Lumber Company was selling the ties to the Gulf, Colorado & Santa Fé Railway Company, on contract between them, and the Foster Lumber Company knew such was the case.

The railroad on which plaintiff was traveling at the time he was injured was a tram-road, and was owned by the Foster Lumber Company. It was being used but little by the Foster Lumber Company at the time of the accident; but the company's locomotive and cars were still being operated over the road and during the months of February, March, April, and May, 1913, 216,000 feet of logs were hauled over the track from points beyond the point where the injury occurred, and from April 14, to April 22, 1913, the company hauled logs and ties over the road every day. The locomotive used by the Foster Lumber Company on this road weighed 60 tons. The tramroad was built in 1909, and was originally intended to be a common carrier; and there were no other tramroads in that locality built like that one.

Under its contract with the Kirby Lumber Company, the Foster Lumber Company manufactured hewn railroad cross-ties in the woods, and hauled them out and distributed them along the tramroad for inspection, and the Gulf, Colorado & Santa Fé Railway Company would send an inspector out each month to inspect and take up the ties. The Kirby Lumber Company would send the inspectors out to the ties in its motor car, and it had the privilege to operate its motor car over the tracks of the Gulf, Colorado & Santa Fé Railway Company for that purpose.

When the inspection trips were made, the Foster Lumber Company would be notified when the inspector would arrive, and the Foster Lumber Company would have its superintendent of the tie department meet the motor car and he would get on the motor car with the inspector of the Kirby Lumber Company, and the inspector of the Gulf, Colorado & Santa Fé Railway Company, and the operators of the motor car, and they, together, would travel over the line of the tramroad of the Foster Lumber Company to such places as the Foster Lumber Company's tie superintendent would direct, and inspect the ties piled on the right of way that he pointed out. It was a part of the contract with the Kirby Lumber Company that the ties were to be inspected before the Foster Lumber Company could receive pay for them, and monthly inspections were made.

J. B. Rodgers, appellee, was in the employ of the Gulf, Colorado & Santa Fé Railway Company, and before the accident occurred, had made about 20 to 23 trips over the tramroad to inspect ties pointed out by the Foster Lumber Company, and an agent of the Foster Lumber Company accompanied each trip. J. B. Rodgers, tie inspector, made reports of his inspection to the Gulf, Colorado & Santa Fé Railway Company, to the Kirby Lumber Company, and to the Foster Lumber Company, and upon these reports of inspection by Rodgers, the Kirby Lumber Company and Foster Lumber Company each got pay for the ties. It made no difference to the Foster Lumber Company who inspected the ties, just so it got its money.

There is evidence of express invitation by the Foster Lumber Company to Rodgers to go upon its track; but the preponderance of the evidence is to the effect that no specific agreement existed between the Foster Lumber Company and either of the other defendants for the use of the tramroad by them. The Foster Lumber Company, however, knew of the use of its tramroad for the inspection of the ties, as it was used at the time of the accident, since the beginning of its contract with the Kirby Lumber Company, and never objected to such use. The Foster Lumber Company could have taken the tie inspector out on the tramroad with its locomotive, but did not do so, and the gasoline motor car was a better and more economical way of getting out to the ties to inspect them, and was much lighter on the track than the locomotive.

The trial court instructed a verdict for the Gulf, Colorado & Santa Fé Railway Company and for the Kirby Lumber Company, and submitted the case to the jury as to the plaintiff and defendant Foster Lumber Company, resulting in a verdict and judgment in favor of plaintiff, J. B. Rodgers, in the sum of $7,500.

The record of the case is quite lengthy, but the above brief statement is sufficient for a full understanding of the issues presented to us, except as we may hereinafter state, in passing upon specific issues. Appellant's first five assignments of error are grouped, and presented in conjunction, and are substantially:

(1) The evidence is insufficient to sustain the verdict of the jury and judgment of the court, as it does not show that the defendant Foster Lumber Company owed plaintiff the duty of keeping its tramroad in a safe condition, or that it was obligated to use ordinary care, or any kind, for the protection of plaintiff against injury while on its tramroad, under the circumstances and at the time shown by the evidence.

(2) The verdict of the jury and judgment is not supported by the evidence, because there was no contract for the use of the tramroad between the Kirby Lumber Company and the Foster Lumber Company, and therefore plaintiff assumed the risk incident to going upon the road.

(3) The third assignment is substantially the same as the second.

(4) The fourth assignment is like the second and third, with the addition that no liability attached by reason of the fact of acquiescence in or permission to use the tramroad by the Foster Lumber Company.

(5) The trial court erred in refusing to give to the jury special requested charge No. 1, asked for by defendant Foster Lumber Company, as follows:

"The jury are instructed that under all of the evidence adduced on the trial of this case, the defendant Foster Lumber Company is not liable to the plaintiff for any damages he may have suffered because of the injury alleged in his petition, and shown by the evidence, and your verdict should be for the defendant Foster Lumber Company, and you will so find."

Each of the assignments of error is presented as a proposition, and seven other propositions are presented under the five assignments, which, briefly stated, are:

(1) There being no contractual relation between the Foster Lumber Company and the Gulf, Colorado & Santa Fé Railway Company, no contract obligation would rest on Foster Lumber Company to furnish a safe, or any, means of transportation for the plaintiff, an employé of the railway company for the inspection of ties, and if he assumed to go on the tramroad of Foster Lumber Company, without such invitation as would impose a duty, it would be at his own risk, and if injured he could not recover of Foster Lumber Company, in the absence of affirmative or active negligence.

(2) There being no contract between the Foster Lumber Company and the Kirby Lumber Company, specifying manner and means of inspection, no obligation would attach to the Foster Lumber Company to furnish safe means of transportation to plaintiff, even though plaintiff be an employé of Kirby Lumber Company, without such invitation as would impose a duty.

(3) The third proposition is practically the same as the second, except that if the Kirby Lumber Company assumed to use the tramroad of the Foster Lumber Company for transportation of plaintiff for such inspections, without such invitation as would impose a duty, and plaintiff went thereon in the motor car of said Kirby Lumber Company, and while so using said tramroad suffered an injury, the Foster Lumber Company would not be responsible therefor.

(4) In the absence of contractual relation between Foster Lumber Company and Kirby Lumber Company, Gulf, Colorado & Sante Fé Railway Company, or plaintiff, permission to use its tramroad growing out of no greater authority than the failure to object to such use, would not create a liability to compensation for the suffering of plaintiff while passing over said tramroad at his own or at the instance of the Kirby Lumber Company, or the railway company, or the employé of either.

(5) The remote interest which the Foster Lumber Company might have in the inspection of ties it sold to Kirby Lumber Company, in the absence of any contract covering the means or manner of their inspection, is insufficient to create an obligation on the part of the Foster Lumber Company to use ordinary or any other degree of care in protecting plaintiff, an employé of the railway company, or the employé of Kirby Lumber Company, if so held, while passing over its tramroad with no other authority than that which grows out of its permission, and it would not be liable for injuries, in the absence of affirmative or active negligence.

(6) The evidence in the case does not justify the submission to the jury of the question whether plaintiff was an...