Garcia v. Sky Climber, Inc.

• Decision Date: 17 June 1971
• Docket Number: No. 15734,15734
• Citation: 470 S.W.2d 261
• Parties: Joe GARCIA et al., Appellants, v. SKY CLIMBER, INC., Appellee. (1st Dist.)
• Court: Texas Court of Appeals

Page 261

470 S.W.2d 261

Joe GARCIA et al., Appellants, v. SKY CLIMBER, INC., Appellee.

No. 15734.

Court of Civil Appeals of Texas Houston (1st Dist.).

June 17, 1971.

Rehearing Denied Sept. 9, 1971.

Brown, Kronzer, Abraham, Watkins & Steely, John M. O'Quinn, W. James Kronzer Bates & Jones, Harry Jones, James H. Campbell, Houston, for Joe Garcia, Francisco Salinas and Guadalupe Salinas.

Max Jennings, Clawson & Jennings, Houston, of counsel for Texas Concrete Silo Co.

Finis E. Cowan, Houston, Baker & Botts, Houston, of counsel, for appellee.

COLEMAN, Justice.

Personal injury case. Appellants, Joe Garcia, Francisco Salinas, and Guadalupe Salinas, appeal from a take nothing judgment rendered below, pursuant to a jury's answers to special issues. Appellant Texas Concrete Silo Company appeals from the judgment awarding $31,799.98 for costs and expenses incurred by appellee, Sky Climber, in connection with the defense of the suit.

The facts surrounding the accident in question are largely undisputed. On July 24, 1967, Garcia and Felipe Salinas were employed by Silo Builders, Inc. Silo Builders was in the business of erecting concrete silos for storage. They used precast concrete blocks for the silos. Garcia and Salinas were sealing the joints between the blocks of concrete. The silo they were working on was approximately fifty-five feet tall and eighteen feet in diameter.

In order to reach the higher blocks, Garcia and Salinas were using a scaffold equipped with an electric motor driven hoisting mechanism . The scaffold belonged to Silo Builders, but the mechanism belonged to Sky Climbers and was leased to Silo Builders. The device is attached to the scaffolding and rides up and down a wire rope which is attached to the top of the silo by a 'sky hook'. The wire rope is threaded through the sky climber device when it is on the ground. The scaffold, with sky climber attached, moves up and down the length of the rope. There is a handle which activates the device up or down by turning the drum on which the wire rope is wound. When the handle is in the 'off' position there is a gear lock which keeps the drum from turning.

Garcia and Salinas were on the last 'drop' of the last silo. Each silo usually takes four or five 'drops', complete trips from top to bottom, to seal all cracks. Each 'drop' requires that the sky hook at the top of the silo be moved. They had just loaded their scaffold with 'mud' (sealant), paint and water and proceeded to the top. They had finished the top level and were preparing to lower the scaffold when Garcia testified he heard a popping noise and looked over to Salinas who was operating the handle to move the scaffold down. He saw the wire rope unravel before his eyes. Just before it crashed to the concrete floor below he instinctively grabbed a roof strut. Salinas fell with the scaffold and Garcia was unable to hold on long enough to be rescued, and he fell to the floor also. Salinas died some three months later, and garcia was severely injured.

Kenneth Perry, foreman of the job, testified that he had threaded the wire rope onto the sky climber device that morning. He carefully checked the wire rope for kinks and worn spots and found none. He testified that the cable was relatively new, that he had put it on no more than a week before. Normally a cable will last three weeks to a month before it has to be replaced. It is exceedingly dangerous to use a damaged rope in a sky climber device. Kinks, 'bird-cages' and 'fish hooks' will cause the device to jam, or will come apart and break the rope. Each time that Garcia and Salinas would move up the rope on their scaffold, they would visually inspect the rope and run their hands along it to check for defects. The device moves at between ten and twenty feet per minute, depending on the load.

The wire rope was introduced into evidence at the trial. There it was examined by appellee's witnesses and several defects were pointed out. Some of the damaged areas were caused by the scaffold falling onto the cable, but others were not attributed to this cause, indicating that the defects were present when the accident occurred.

Appellants Garcia and Salinas sued on alternative theories. On the one hand they claimed that the rope was in good condition and not damaged, but somehow became caught in the hoisting mechanism and was torn apart. Alternatively, appellants sued on a strict liability theory of design defect. Appellants' expert witness testified that a fail-safe inertia type braking system could have been designed to prevent accidents such as this, regardless of the condition of the wire cable. Appellee strongly controverted this theory, contending that the contemplated safety device was impractical, and not feasible, that it would not have prevented this accident, and that other manufacturers of similar equipment had no such similar safety device.

The jury found, in answer to special issues, that (1) the sky climber device was not unfit for its intended use, that (3) the design of the device was defective, (4) that such design was negligence, but (5) not a proximate cause of the accident, that (6) the failure to equip the device with a fail-safe inertia type brake was not negligence, that (7A) the wire rope used by appellants was damaged, that (8) the failure of Sky Climber, Inc. to warn appellants not to use defective rope was negligence, but (9) not a proximate cause of the accident, and (12) that the action of the personnel of Silo Builders, Inc., in continuing to use the cable was the sole proximate cause of the accident.

Further, the jury found that (13) the failure of Texas Concrete Silo Company to require safety belts was not the sole proximate cause of the accident, that the continued use of the cable by Garcia (14) and Salinas (16) was not negligence, and that their failure to wear safety belts was not negligence (18, 20). Texas Concrete Silo Company did not fail to require supervisory personnel to replace damaged cables (22), it did not fail to instruct Garcia (25) or Salinas (27) of the dangers of using damaged rope, but did fail to instruct appellants on the proper use of safety belts (29), but that such action was not a proximate cause of the accident (30). The jury also found that the general practice in the industry was not to use safety belts. The jury also answered damages issues, awarding Garcia $50,000.00 in general damages (32), and $10,000.00 for medical expenses (33), and $20,000.00 to Salinas' parents for loss resulting in their son's death (34), $12,000.00 for Salinas' conscious pain and suffering (35), and $15,000.00 for medical expenses (36).

In addition to the ordinary instructions and definitions of preponderance of the evidence, negligence, ordinary care, and proximate cause, the court gave the following instructions to the jury:

'You are instructed that a manufacturer has no duty to use the safest design which can be conceived or imagined, but has the duty to employ such design as would be employed by a manufacturer of ordinary prudence exercising such care as would be exercised by a manufacturer of ordinary prudence in the exercise of ordinary care under the same or similar circumstances.'

This instruction is the subject of appellants' first five points of error. It is challenged on the grounds that it is an incorrect statement of the law applicable to a strict liability case, that it constitutes an improper general charge, that the instruction was given generally, and not restricted in its applicability to other than the first two issues, the strict liability issues, that the instruction constituted a comment on the evidence, and that the judge should have given additional limiting instructions.

The trial court erred in giving the instruction because it was a general charge on the law. Rule 277, Texas Rules of Civil Procedure, 'does not authorize the giving of an instruction which is not 'necessary to enable the jury to properly pass upon and render a verdict on such issues;' and which is calculated to prejudice one of the parties before the jury.' Boaz v. White's Auto Stores, 141 Tex. 366, 172 S.W.2d 481 (1943). The Supreme Court has recently held that a correct statement of the applicable law given as an instruction properly limited to the relevant issues, was nonetheless objectionable as a general charge. Pittsburg Coca-Cola Bottling Works v. Ponder, 443 S.W.2d 546 (Tex.Sup.1969).

Appellants' sixth point of error complains of the instruction given by the trial court when he sent the jury back to resolve a conflict in their original answers. Special Issue No. 5 inquired whether the negligent design of the sky climber device, if so found by the answers made to Special Issues Nos. 3 and 4, was a proximate cause of the occurrence in question. The jury had originally answered 'We do.' The jury had also found, in response to Special Issue No. 12 that the continued use of the cable by personnel of Silo Builders, Inc., was the sole proximate cause of the accident. In refusing to accept their verdict, the trial judge gave the following challenged instruction:

'Ladies and gentlemen, I cannot accept your verdict because there is a conflict between your answers to Special Issues Nos. 3, 4 and 5, and Special Issue No. 12, and particularly between Nos. 5, being in conflict with your answer to Special Issue No. 12. In considering your answers, I further instruct you that by the term 'wire rope', as used in No. 3, is meant an undamaged wire rope normally used by persons of ordinary prudence in the exercise of ordinary care under the same or similar circumstances.'

The instruction, particularly the last sentence, is challenged as being unnecessary, constituting a comment on the weight of the evidence, and placing undue and improper emphasis on appellee's position in the case.

When there exists a conflict in the answers of the jury to special issues, the court is under a duty to retire the jury for further...