Gillock v. Texas & P. Ry. Co., 6930
| Decision Date | 02 May 1957 |
| Docket Number | No. 6930,6930 |
| Citation | 302 S.W.2d 717 |
| Parties | W. C. GILLOCK, Appellant, v. The TEXAS & PACIFIC RAILWAY COMPANY, Appellee. |
| Court | Texas Court of Appeals |
Faver & Barnes, Jasper, for appellant.
Bibb & Green, Marshall, Earl Roberts, Longview, J. T. Suggs, Wm. G. Duncan, Dallas, for appellee.
W. C. Gillock, an engineer for The Texas & Pacific Railway Company, sued his employer under the provisions of the Federal Employers' Liability Act, 45 U.S.C.A. Sec. 51 et seq. to recover a total of $97,000 as damages resulting from personal injuries he allegedly received. The suit grew out of a collision on the 4th day of August, 1952, that occurred when the switch engine operated by Gillock, pushing a box car ahead of it, collided with a string of cars rolling toward the engine on a track in the Dallas yards of the Railroad.
The trial court rendered judgment against Gillock on the answers of the jury to special issues. By their answers the jury exonerated the Railroad on all issues of primary negligence. It answered 'None' to the damage issue and found against Gillock on three of the four contributory negligence issues submitted and on the other that he did not fail to keep a proper lookout. The accident was found to be unavoidable. On the issue of comparative negligence the jury held Gillock and the Railroad equally negligent (50%).
Appellant embodies four grounds for reversal in 14 points of error. The points are grouped for discussion and the same procedure is followed here.
The court submitted as a part of the Railroad's defense these two issues:
'Do you find from a preponderance of the evidence that prior to learning of the cars ahead of him, W. C. Gillock was operating his engine at a speed which was excessive for the purpose of coupling into cars?'
'If you have answered the above and foregoing question 'Yes' then answer the following question; otherwise, you need not answer the following question:
'Do you find from a preponderance of the evidence that such operation of the engine at a speed which was excessive for the purpose of coupling into cars, if you have so found, constituted contributory negligence on the part of W. C. Gillock, as that term has been defined to you?'
The plaintiff objected to the form of such issues as being upon the weight of the evidence by assuming the engine was being operated 'for the purpose of coupling into cars,' contending that whether the engine was being operated for such purpose was a material and seriously disputed issue of fact.
It is not necessary to determine whether the issue as given was upon the weight of the testimony or assumed as true controverted facts because any harm that might have emanated from an improper submission of the two issues is cured by the verdict returned by the jury. These issues were designed to show Mr. Gillock's alleged contributory negligence in operating a switch engine at an excessive speed. The jury's answers to the issues on primary negligence entirely acquitted the Railroad of any negligence and Gillock's contributory negligence or want of it could not be the basis of any judgment to be rendered. Appellant cites several cases in support of his contention that the submission of the two issues was error but they are not applicable to the procedural situation presented by this record. The case of Brown & Root v. Haddad, 142 Tex. 624, 180 S.W.2d 339, 342, Tex.Com.App., adopted by Sup.Ct., controls under the circumstances presented. In that case referring to a similar complaint it was said:
Similar disposition of this question is made in Adkins v. Texas & P. Ry. Co., Tex.Civ.App., 233 S.W.2d 956, wr. ref. See Rules 434, 503, Vernon's Ann. Texas Rules of Civil Procedure.
Fireman Worthy who worked on the engine with appellant at the time of the collision was called as a witness by Mr. Gillock. During cross-examination the fireman testified that four miles per hour was an excessive speed for the purpose of coupling into cars. Previously the appellant had testified that at the time of the collision the engine was being operated at a speed of 10 miles per hour. After the witness Worthy was dismissed, and the Railroad had closed its case, appellant's counsel offered extracts from the Railroad's 'Uniform Code of Operating Rules' and 'Time Table No. 53' in rebuttal. These extracts prescribed operating speed of railroad engines under various conditions at various places. On objection of the Railroad this proffered evidence was excluded and appellant excepted and brought the court's action forward in bills of exception.
For the purpose of disposing of this alleged error it is assumed without being decided that this evidence was admissible. The evidence could only be relevant to the issues of appellant's contributory negligence in operating the engine at an excessive rate of speed, and no other contention is made with respect to it.
As pointed out in the preceding discussion of the charge the harmless error rule would prevent a reversal because there was no finding of primary negligence against the Railroad. For the same reason error in the admission or exclusion of evidence in connection with the issues of contributory negligence becomes immaterial. Any error in excluding the extracts from the Company's Rules and Time Tables relevant to such alleged contributory negligence is not reasonably calculated to nor would it probably cause the rendition of an improper verdict. No case passing upon this identical proposition has come to the court's attention, but such rule is inferable from Rules 434 and 503, and the two cases previously cited. Support is found in City Transportation Co. of Dallas v. Davis, Tex.Civ.App., 257 S.W.2d 476, wr. ref., n.r.e., and McCormick v. King, Tex.Civ.App., 268 S.W.2d 552, wr. ref., n.r.e. Appellant's first three points are overruled.
The core of appellant's complaint stated in Points 4 to 11 is that the trial court erred in rendering judgment because the undisputed evidence and the overwhelming weight and preponderance of the evidence establishes as a matter of law that appellant sustained injuries and damage in the course of employment which were proximately caused by the Railroad's failure to keep the string of cars with which the engine collided under proper control and adequately manned and that the verdict as a whole is in such violent conflict with the undisputed evidence and the overwhelming weight and preponderance of the evidence as to show the jury was motivated by partisanship, hatred, bias and prejudice in returning its verdict.
Appellant's brief summarizes what his counsel considers to be the undisputed evidence in this record presumably stating it in the light most favorable to his case and the same is reproduced as follows:
'The five loose cars hit his (engineer Gillock's) train a very hard blow, knocking him down between the seat and the instrument panel. About the time that he and the fireman had got up from that fall the same cars struck his train on a rebound knocking him down a second time. His fireman, Mr. Worthy, picked him up and moved him to one side so that the fireman could take the engineer's place and operate the train. The two falls gave rise to very severe pain through his hip and his low back. After the fireman had pulled the train back to the place of its beginning, with the help of the fireman the plaintiff, Mr. Gillock, was able to get down from the cab and go over to a bench being helped to the bench by Mr. Worthy. Then an ambulance was summoned and came and rushed Mr. Gillock to the hospital where some doctor checked him, then rolled him in a wheel chair out to the curb to take a taxicab to his room. He spent the remainder of the night of August 3rd and 4th, and the day of August 4th, at his room in bed. He then went to his home, and after spending the night in pain reported to the hospital of the Texas & Pacific Railway Company in Marshall on the next morning. He continued to suffer intense pain, but on the third day returned and resumed his work, but soon after resuming his work he began a course of persistent treatment by his regular family physician. The testimony of a * * * witness, Mr. Worthy, who was an employee of the defendant, supports all of that testimony by Mr. Gillock up to the time that he was taken away in the ambulance. He testifies that he had to take over the engineer's duty to return the train to the place of beginning. He had to assist Mr. Gillock off the locomotive and had to assist him to a bench and that thereafter an ambulance came and took him away, and that he finished the night with a different locomotive engineer, one Mr. Thompson.
'Dr. Joe C. Neal, defendant's partisan witness, who had to review his record to determine whether he had ever seen Mr. Gillock at all, did recall after much study that Mr. Gillock was sent to him in the early morning hours of August 4th at St. Paul's hospital, and that he had checked him. By studying his notes he could remember that he found a bruise on Mr. Gillock's left buttock and a 'slight strain to the back' and that he was complaining of pain through his left hip and his low back when he was being examined by the doctor.
'Dr. Khoury testified that he had treated Mr. Gillock intermittently from the accident...
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