Gulf, C. & S. F. Ry. Co. v. Deen
| Decision Date | 04 February 1955 |
| Docket Number | No. 3135,3135 |
| Court | Texas Court of Appeals |
| Parties | GULF, COLORADO & SANTA FE RAILWAY COMPANY, Appellant, v. Earl R. DEEN, Appellee. |
Woodruff & Holloway, Brownwood, Hudson, Keltner & Sarsgard, Ft. Worth, for appellant.
McCord, Durant & Witts, Robert Lee Guthrie, Dallas, for appellee.
On July 12, 1949, Earl R. Deen had his leg broken by babbitt falling from a melting pot and he sued his employer, the Gulf, Colorado & Santa Fe Railway Company, for damages under the Federal Employers' Liability Act. See 45 U.S.C.A. § 53. Deen had then been employed by said company as a coppersmith in its roundhouse in Brownwood for eleven years. The company kept there a babbitt melting pot which had cracked and was no longer usable. The railway company had ordered a new pot. On the morning of July 12th, Deen's foreman advised him there was an engine in the roundhouse which had to be repaired that day. Deen was working on said engine when the clerk of said company's store department told him the new pot was on the way to the roundhouse from the depot. Deen left the engine, moved the old pot to the floor and was attempting alone to dump the babbitt out of the pot when a blacksmith, Snow, saw Deen and volunteered to help, Snow and Deen tried to dump the pot 'away' from them but it was too hearvy to tilt the pot forward without more help and they then pulled the pot toward them and the babbitt fell forward from the pot and broke Deen's leg. Deen did not ask for any help. Three times within the preceding three weeks, Deen, with the assistance of sufficient help, had manually removed the babbitt without anyone being injured. Threr were about sixty other men employed in Deen's department of the railway shop. His employers were not advised that he was then going to do such work, nor how he proposed to do it, but Deen voluntarily attempted to do it alone and then, after Snow volunteered, he proceeded to remove the babbitt with only the assistance of Snow.
Deen alleged it was necessary, if said engine was to be repaired that day, that there be no delay in installing the new melting pot and that it was his duty to get the old off the furnace and remove the babbitt; that he moved the pot from the furnace to the floor; that the pot weighed about 250 pounds and the babbitt and pot together weighed about 800 pounds; that to get the babbitt out of the pot it was necessary to raise the pot on its edge so the babbitt would fall out; that the railway company knew, or should have known, that the old pot had to be moved and the babbitt taken out and, therefore, it was it duty to furnish Deen with proper tools with which to take the babbitt out of the old pot, or to furnish 'sufficient help to remove such babbitt without the use of tools'; that Deen knew the babbitt could not be removed without tools to grasp the pot and give sufficient leverage to turn the pot over, or 'that he have sufficient help to tip the edge of said pot over and turn the same in the direction away from the plaintiff'; that plaintiff procured the help of one man, Snow, to turn said pot over and dump the babbitt; that they attempted to turn the pot over by raising it on its edge and tilting it 'away from them' but, because of its weight, they could not do so; 'that because of the lack of sufficient help or sufficient tools, it then became necessary for the plaintiff and the said Snow to grasp said pot upon its edge and pull same towards them in order to turn the same over'; that when they titled the pot toward them the babbitt fell toward Deen and struck his leg. 'That had the plaintiff had sufficient help, to-wit: at least two other persons, to assist in turning said pot over, the same could have been done by lifting the same and turning it over away from the said plaintiff and the said Snow, but because of the negligence of the defendant in failing to furnish sufficient help or sufficient tools' Deen was injured. (Emphasis ours.) Defendant answered, among other things, that Deen decided when and how this should be done and that he acted without instruction as to how it should be done; that Deen did not ask for additional help nor for instructions; that the method used was decided by Deen alone and, if there was negligence in the amount of help used or the manner in which the work was done, said matters were determined solely by Deen and his injury was the result of his own negligence.
A jury found (1) the railway company failed to furnish Deen with proper tools to remove the babbitt and (2) that such failure was negligence and (3) a proximate cause of Deen's injury; that (4) defendant did not fail to furnish one or more men, in addition to Snow, to assist Deen in removing the babbitt from the melting pot; that (7) the railway company did not fail to give Deen proper supervision; that (10) Deen was negligent in failing to obtain additional help to do the work he was doing when he was injured and that (11) Deen's said negligence was a proximate cause of his injury. The jury found that (13) Deen was not negligent in the manner and method used in doing the work; that (15) the railway company and its supervisory employees should have reasonably anticipated that Deen would perform the work which caused his injuries in the way and manner in which he did; that (16) the sole proximate cause of Deen's injury was not 'due to' his acts and conduct; that (17) $39,000 would compensate Deen for his injuries but that (18) said amount should be reduced 45%, or $17,550, by reason of Deen's negligence. Judgment was rendered on said verdict awarding Deen $21,450 and the railway company has appealed.
The principal question presented is whether there was evidence to sustain the finding that the railway company was negligent in failing to furnish Deen with tools to remove the babbitt from the melting pot. Deen was furnished a revolving hoist and chains with hooks which he used to move the melting pot from the furnace to the concrete floor. His injury was caused by the falling of the babbitt from the pot while he and Snow were trying to get the babbitt out by titling the pot 'toward' them, instead of 'awary from' them, after the pot had been moved from the furnace to the floor. Appellant contends it had no duty to furnish more than one reasonably safe way to do the job; that the babbitt could have been removed with reasonable safety by the use of the additional help available and that the jury's findings and the undisputed evidence so show.
The melting pot was described by Denn as being about nine to ten inches deep, forty inches long and twenty-two inches wide. It was slightly wide at the top than the bottom. It resembled a kitchen sink. The pot weighed about 250 pounds and it and the babbitt terein weighed about 800 pounds. The pot had an outside rim around its top 1 1/2 to 2 inches wide.
Deen's complaint was, in substance, that it was the company's duty to do one of two things, either furnish tools or additional help to remove the babbitt. Deen seems to recognize in his pleadings the correctness of appellant's proposition that the company did not have a duty to furnish more than one reasonably safe way to do the work.
We shall now attempt to determine the correctness of appellant's contention that the verdict and the undisputed evidence show that the babbitt could have been removed with reasonable safety with the additional help available to Deen. If this contention is correct, the railway company had furnished one reasonably safe way to do the job and it had no duty to furnish a second reasonably safe way, that is, to furnish Deen with tools. In other words, if there was no need for tools the railway company had no duty to furnish them. Western Union Telegraph Co. v. Coker, 146 Tex. 190, 204 S.W.2d 977, 979; Louisvill & N. R. Co. v. Davis, 6 Cir., 75 F.2d 849; August v. Texas & N. O. R. Co., Tex.Civ.App., 265 S.W.2d 148, 153 (RNER); Armstrong v. Missouri-Kansas-Texas R. Co. of Texas, Tex.Civ.App., 233 S.W.2d 942, 946 (RNRE); Wolfe v. Henwood, 8 Cir., 162 F.2d 998, 1000; Fore v. Southern Ry. Co., 4 Cir., 178 F.2d 349, 351; McGivern v. Northern Pac. Ry. Co., 8 Cir., 132 F.2d 213, 217; Thomson v. Pennsylvania R. Co., 6 Cir., 88 F.2d 148, 150; Jonhson v. Pulliam, Tex.Civ.App., 161 S.W.2d 589 (RWM).
As heretofore shown, the jury found the railway company did not fail to furnish more men to assist Deen in removing the babbitt; that it did not fail to give Deen proper supervision at the time of his injury; that Deen was negligent in failing to obtain additional help to remove the babbitt and that such negligence was a proximate cause of his injury. We think said answers, considered in connection with the record, must be construed as a finding that sufficient men were avaiable to help Deen remove the babbitt with safety. If it does not include a finding that the babbitt could have been thus removed with reasonable safety, we need only to further determine whether the record shows that if Deen had used sufficient help the babbitt could have been manually removed with reasonable safety. It is undisputed that several times recently before Deen's injury, he, with sufficient help, had manually removed the babbitt without injury. Deen pleaded that it was the company's duty to either furnish tools or additional help and the jury found that additional help was furnished and Deen was negligent in not using it. It is shown by Deen's testimony that if the babbitt could have been emptied by turning the pot away from, instead of toward, the men doing the work it could have been manually done with safety. The record shows that with sufficient help the babbitt could have been manually removed from the pot with reasonable safety by tilting the pot away from the men doing the work. The testimony of Deen and his witnesses are conclusive on this question. The following testimony of Deen and his witnesses show...
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