Franklin v. City of Galveston

• Court: Texas Civil Court of Appeals
• Writing for the Court: MONTEITH
• Citation: Franklin v. City of Galveston, 256 S.W.2d 997 (Tex. Ct. App. 1953)
• Decision Date: 26 March 1953
• Docket Number: No. 12483,12483
• Parties: FRANKLIN et al. v. CITY OF GALVESTON et al.

Page 997

256 S.W.2d 997

FRANKLIN et al. v. CITY OF GALVESTON et al.

No. 12483.

Court of Civil Appeals of Texas, Galveston.

March 26, 1953.

Rehearing Denied April 16, 1953.

Burris Benton, Baker & Zwiener, F. F. Benton, Eugene N. Catlett, of Houston, for appellant Lola Mae Franklin et al.

Royston & Rayzor and C. A. Brown, of Galveston, for appellant Texas Employers Ins. Ass'n.

Williams & Thornton, Bryan F. Williams, of Galveston, for appellee City of Galveston.

MONTEITH, Chief Justice.

This suit was brought by Lola Mae Franklin, individually and as guardian of her five minor children, for the recovery of damages from appellee, City of Galveston, for the death of Jerry Franklin, who was drowned in the channel of Galveston Bay, into which he fell from a ramp constituting a part of the waterfront docks owned by appellee, City of Galveston. It was alleged that Jerry Franklin's death was brought about by the negligence of the defendant, City of Galveston, its agents and employees.

Texas Employers Insurance Association, who carried compensation insurance for appellee, was made a party defendant to the action in order that it might assert any claim it had in a recovery by plaintiffs.

On December 20, 1949, the City of Galveston owned and operated an export grain elevator with railroad trackage, warehouses, sheds, docks, wharves and berthing space used in the operation of its elevator, and in the shipment of grain therefrom by rail and ocean-going vessels. Pier 27 was approximately 2 9 lower than Pier 28 and was reached by an inclined ramp connecting piers 27 and 28. Jerry Franklin was employed as a longshoreman by Southern Stevedoring Company, Inc., on December 20, 1949, to assist in the trimming of grain in the holds of the S. S. Ames Victory, which was docked alongside of Pier 27 for the purpose of receiving grain from the elevator. At about 7:00 p. m. on December 20, 1949, Jerry Franklin slipped while going down the ramp between Pier 28 and Pier 27 on the way to work and as a result lost his balance and fell overboard and was drowned.

In answer to special issues submitted, the jury found, among other things, that the city failed to keep the ramp between Piers 27 and 28 at the time of the occasion in question free of foreign substances, and that such failure was negligence and a proximate cause of the death of Jerry Franklin. The jury found that the city, its agents, and employees knew that there were foreign substances on the ramp, and that its agents and employees had such knowledge and sufficient time before Jerry Franklin's death to have removed the foreign substance. The jury found that the city had not failed to light the ramp and that the city was not negligent in providing life saving equipment on the docks, or in not providing a railing on the ramp and that the city was not negligent in failing to provide said ramp with proper cleats and that the ramp on the occasion in question was not in a reasonably safe condition for the use of Franklin and others similarly employed, and that the failure of defendants, its agents, servants and employees to maintain the ramp in a reasonably safe condition was negligence and that such negligence was a proximate cause of the deceased's death; that the agents, servants and employees of the city had such knowledge for sufficient time before his death to have placed said ramp in a reasonably safe condition for the use of Franklin and other employees; that the ramp at the time of and immediately before Franklin fell was in a slippery condition and that they had failed to warn the deceased, Jerry Franklin, of that fact. The jury found that Franklin kept a proper lookout and that he was not guilty of negligence in proceeding down the ramp at the time that he did. The jury found that Jerry Franklin knew and appreciated the danger attendant upon proceeding down the wharf and ramp and that he voluntarily selected the route down the wharf and ramp that he did; that the lack of a railing on the ramp was as well known to Jerry Franklin as to the City of Galveston; that he was familiar with the lack of a railing on the water side of the wharf and ramp in question and that at the time and on the occasion in question the ramp and wharf were similar to the condition which usually existed under the same and similar circumstances. The jury found that it was open and obvious to Jerry Franklin that the condition of the wharf and ramp in question was similar to that condition which usually existed under similar circumstances. The jury found that the death of Jerry Franklin was not due to an unavoidable accident, and the ramp on the occasion in question was similar to the condition which usually existed and that it was open and obvious to him and that at the time of the accident was similar to the condition which usually existed and that it was as well known to Jerry Franklin as to the defendants. The jury fixed the amount of plaintiffs' damages at $22,000.

Jerry Franklin, a colored man, 40 years of age, had been working as a longshoreman about the Galveston Wharves about three years. He had worked on grain boats in that area since 1943. A number of witnesses testified that there was an accumulation of grain on the ramp but that the conditions as they existed on the night of Franklin's death were no different from any other time.

On the afternoon of the day on which Franklin was later hired, the Stevedoring Company had caused some bales of bags to be placed on the docks, but a passageway was left open over Pier 27. The record shows that in proceeding from the upper dock to the ramp they walked over the bales of bags.

The case of Galveston, H. & H. R. Co. v. McLain, Tex.Civ.App., 218 S.W. 65, 67, writ of error refused, was an appeal from a judgment rendered on a verdict in favor of plaintiff against the defendant railroad company for injuries suffered by the plaintiff while he was an invitee upon a side track owned by the defendant, running along Mechanic Street in the City of Galveston past the warehouse of Stolz and Peterson, by whom the plaintiff was employed. At the time plaintiff was injured, an empty car was being moved in the customary manner by pushing it, by some of the employees including plaintiff, from a position between the rails at the hind end of the car. While the car was being pushed, the plaintiff's pants leg was caught by a sliver or splinter in one of the rails which held him until a loaded car coming down the track struck and injured him. The track and rails where the accident occurred were in a dilapidated condition, in that the rails were splintered with slivers sticking out from their sides, and the track was uneven from high and low places in it to such an extent that it was a hard matter to move cars over it. This Court, after ruling that the plaintiff was an invitee upon the track of defendant, and, despite the verdict in his favor, was shown by his own evidence to have had full knowledge of the defective condition of the track prior to his injury, held that the verdict in his favor and the judgment rendered thereon, must be set aside, and Justice Graves, speaking for the Court said in part: 'No case has been cited holding a recovery to an invitee permissible when the condition of the premises causing his injury was fully known to him, and we apprehend that none can be. * * *'

The case of Texas & P. Ry. Co. v. Howell, Tex.Civ.App., 117 S.W.2d 857, 859, error dismissed, was an action for damages for injuries suffered by the plaintiff when his foot went through the planking of a loading platform maintained by defendant railroad company where he was engaged as an employee of the shipper in loading cotton. On a verdict awarding him damages, judgment was entered by the trial court. On appeal it was held that the judgment in favor of plaintiff must be set aside because if the hole through which his foot slipped was one of which he was aware, he could not recover because he had knowledge of its existence; and that if it was one which had been recently brought about because of a rotten condition of the planking, the evidence was not sufficient to show that the defendant was negligent in failing to detect and remedy the defective condition. In its opinion the Court said, 'If the whole of plaintiff's testimony should be construed to the effect that prior to his injury there was a hole in defendant's platform, apparently made by the wheels of a truck breaking through the platform, and that plaintiff had noticed the hole for sometime prior to his injury, then, we think, as contended by defendant, recovery by plaintiff is precluded for the reason that 'The duty to keep premises safe for invitees applies only to defects * * * that are not known to...