Galveston, H. & S. A. Ry. Co. v. Brewer

• Decision Date: 27 January 1928
• Docket Number: (No. 9047.)
• Citation: 4 S.W.2d 320
• Parties: GALVESTON, H. & S. A. RY. CO. v. BREWER.
• Court: Texas Court of Appeals

4 S.W.2d 320

GALVESTON, H. & S. A. RY. CO. v. BREWER.

(No. 9047.)

Court of Civil Appeals of Texas. Galveston.

January 27, 1928.

Rehearing Denied March 29, 1928.

Appeal from District Court, Lavaca County; Lester Holt, Judge.

Action by J. S. Brewer against the Galveston, Harrisburg & San Antonio Railway Company. From a judgment for the plaintiff, defendant appeals. Affirmed.

Baker, Botts, Parker & Garwood, of Houston, and Marcus Schwartz and W. T. Bagby, both of Hallettsville, for appellant.

Henry S. Paulus, of Yoakum, and Fly & Ragsdale, of Victoria, for appellee.

PLEASANTS, C. J.

This suit was brought by appellee to recover of appellant the sum of $25,000 damages for personal injuries alleged to have been caused by the negligence of appellant.

Plaintiff's petition alleges, in substance, that he received the injuries of which he complains while engaged with other employees of appellant in its yards at Yoakum, Tex., in loading heavy timbers, called "stringers," upon one of appellant's cars; that the timbers were loaded on the car "by means of a hoisting machine which consisted of a power appliance, a crane, pulleys and chains, or cables and hooks; that appellee was required to fasten the hooks used in hoisting the timbers, in one end of the timber to be hoisted, and another employee of the appellant was required to fasten the hook in the other end, and that after said hooks were securely fastened that fact would be communicated to another of appellant's employees, who put into operation the motive power that was required to hoist and lift the timber from the ground to the car, and the stringer would then be pulled in position on the car, after which the grappling hooks would be released, and this process of loading continued until the work had been completed; that appellee fastened the grappling hook used by him securely in one of the pieces of timber desired to be loaded, and his coemployee also fastened the grappling hook used by him in another part of the timber, and the necessary signal was given to hoist the timber; that while said timber was being so hoisted, the chain or cable appliance, or some connection used therewith for said hoisting, broke or became disconnected, and as a result said timber, or one end thereof, fell to the ground, and in so falling struck appellee in the back, which caused him to suffer great pain and permanently injured him; that his injuries are permanent and that he is wholly incapacitated from performing any remunerative labors and from earning any money as a laborer; that as a result of said injuries he has become nervous, is unable to sleep at night, and cannot put on his own shoes and lace them up, and generally is unable to perform the ordinary duties of dressing and undressing himself."

The negligence pleaded as the cause of plaintiff's injury will be hereinafter shown.

Appellant (defendant) answered by general demurrer, by special exception to that part of paragraph 9 of appellee's petition wherein he attempted to base a recovery upon the value of his labor in and about his own home, by a general denial, and by special denial, especially denying that the hoisting machine, chains, hooks, and other parts belonging thereto and used on the occasion in question were defective in any respect or insufficient to lift the timbers which were being loaded, and alleging that said machine was in perfect condition and was scientifically constructed and built, and that it was the same kind of machine that is generally in use by railroads and other companies where heavy timbers are to be moved and lifted from one position to another; and also especially denying negligence in the operation of said machine and charging contributory negligence on the part of appellee in placing the grappling or timber hooks fastened by him in an improper place, thereby causing the stringer or timber to fall, and in failing to place himself in a safe position and place after said hooks were fastened and while the hoisting machine was being operated. Appellant also pleaded that at the time of said injury it was engaged in interstate commerce and appellee assumed the risk incident to said work.

The trial in the court below resulted in a verdict and judgment in favor of appellee in the sum of $12,500.

Appellant first complains of the ruling of the trial court refusing its application for a continuance. This application was based upon the ground that by the amended pleading filed by plaintiff on the day the case was called for trial he had set up a new and different cause of action from that theretofore pleaded by him, and defendant not having any notice of plaintiff's change of his cause of action was not prepared to meet it with evidence then at its command, but by continuance of the cause could procure such evidence.

Conceding that the application contains all of the statutory requisites of a first application for continuance, the court did not err in refusing it, because the facts stated therein are not supported by the record, in that the amended petition on which the case was tried did not set up a new and different cause of action from that theretofore pleaded by the plaintiff. The negligence upon which the cause of action is based is thus pleaded in the amended petition upon which the case was tried:

"(a) That said injuries were brought about to him as a direct and proximate cause of the defendant's negligence in failing to furnish him safe and suitable material and instruments and means of labor in discharging his duties to this defendant in loading said material, in this, that the hooks, chain, or cable to which the grappling hook was fastened were insufficient and unsafe in all their parts to meet the requirements of lifting said timbers, and by reason of their insufficiency the same in the manner of their use became disconnected or broken, as hereinbefore alleged, or else the same was insufficient in that the same would not remain securely fastened in all their parts and the same became loose and permitted the timber, to which the grappling hook had been fastened, to fall.

"(b) That the said hoisting machine in its entirety and in the various parts thereof, which included each and everything necessary to complete and equip a proper hoisting machine and the maintenance thereof to be used in hoisting materials and timbers from the ground to cars upon which same were to be loaded, was on said 31st day of October, A. D. 1925, under the exclusive control and management of the defendant or its agents and employees other than this plaintiff, and the accident and injury to said plaintiff, so occasioned as aforesaid, was such as in the ordinary course of things does not happen if those who have the management and control use proper or ordinary care, and this plaintiff's injuries so occasioned and suffered, as aforesaid, by reason of the falling of said timber, was proximately caused by the negligence of the defendant or its agents, and employees acting for it within the scope of their authority or employment in that behalf, due to the want of ordinary care in the construction of said hoisting device or in the maintenance thereof, whereby it was on account of the negligence of the defendant, or imputable to it, either improperly constructed or else insufficiently and improperly maintained, but the particular or particulars of which negligence are unknown to this plaintiff, and he cannot here more definitely or with greater certainty specify same and that but for such negligence such injury to this plaintiff would not have occurred.

"Plaintiff shows to the court that if he be in error as to the allegations contained in the next preceding paragraph of this petition as set out in subdivisions (a) and (b) thereof, as to devices and tools and appliances or their maintenance so furnished him by defendant with which to perform his duties to this defendant, then he says and charges in the alternative the facts to be that the defendant, its agents, servants, and employees, other than this plaintiff, on said day so negligently operated said hoisting apparatus in hoisting or lifting the heavy timbers from the ground that the grappling hooks or some other part of said device became loosened and permitted said timber to fall and strike this plaintiff and injure him as aforesaid, while he was in the exercise of due care for his own safety and without fault on his part. That the said hoisting crane and all of its parts so used in hoisting said timbers on said occasion by the defendant, including its operation, handling, and equipment, was under the exclusive management and control of the defendant, its employees and agents, other than this plaintiff, and the accident to this plaintiff, the said J. S. Brewer, so occasioned, as aforesaid, was such as in the ordinary course of things does not happen if those who have the management and control, and use and operation of said device, use proper or ordinary care in such handling, and this plaintiff's injuries so suffered on account of said falling timber were proximately caused by the negligence of the defendant or its agents or employees acting for it within the scope of their employment in that behalf, due to the want of ordinary care either in the operation or handling of said equipment or in the equipment of said device itself, whereby it was, on account of the negligence of the defendant, or imputable to it, either improperly operated or handled negligently, or else insufficiently equipped, but the particular or particulars of which are unknown to plaintiff, and he cannot here more definitely or with greater certainty specify same, and but for such negligence such injuries would not have occurred."

The allegations of negligence in the superseded pleading are as follows:

"That said injuries were brought about to him as a direct and proximate cause of the defendant's negligence in failing to furnish him safe and suitable material and instruments and...