Gulf, C. & S. F. Ry. Co. v. Young

• Decision Date: 10 April 1926
• Docket Number: (No. 9503.)
• Citation: 284 S.W. 664
• Parties: GULF, C. & S. F. RY. CO. v. YOUNG.
• Court: Texas Court of Appeals

284 S.W. 664

GULF, C. & S. F. RY. CO. v. YOUNG.

(No. 9503.)

Court of Civil Appeals of Texas. Dallas.

April 10, 1926.

COPYRIGHT MATERIAL OMITTED

Appeal from District Court, Dallas County; Kenneth Force, Judge.

Action by Gus Young against the Gulf, Colorado & Santa Fé Railway Company. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

Terry, Cavin & Mills, of Galveston, W. P. Donalson, of Dallas, and Lee, Lomax & Wren, of Fort Worth, for appellant.

Harmon & Harmon, of Dallas, for appellee.

VAUGHAN, J.

Appellee, Gus Young, as plaintiff, instituted his action in the court below to recover of appellant railway company damages for an alleged hernia and loss of sexual power as the consequence of certain personal injuries received by him while in appellant's service as a trucker in its freight depot at Dallas, April 10, 1920.

Briefly, appellee in substance alleged that on or about the 10th day of April, 1920, he was an employé of appellant, and, on said date, while in the discharge of the duties of his employment as a trucker, at and about its freight depot, he was negligently and carelessly ordered, permitted, and required by appellant, its agents, servants, and employés, in charge of the movement of its freight and in its freight department at Dallas, to move and transfer a certain piece of cotton machinery weighing about 1,500 pounds; that, while in the performance of said service, he, through the negligence of appellant, received personal injuries, which caused a rupture in his right side, great pain and suffering, loss of time, and loss of sexual power, thereby permanently injuring him, to his damage in the sum of $10,000.

As to the grounds of negligence, appellee in substance alleged that appellant was guilty of negligence in furnishing a defective truck, in requiring appellee to move a piece of machinery which was improperly crated, in failing to furnish appellee with sufficient help, and in failing to furnish appellee with suitable tool and carriage with which to handle the machinery, which suitable tool and carriage appellant was able to provide, and had on its premises before and at the time he received the injuries complained of. The last-mentioned allegation manifestly has reference to a "dolly," which is ordinarily used to move shipments of large bulk or of extra heavy weight.

In addition to a general denial, appellant pleaded specially as follows: (a) Latent defect in the truck used by appellee; (b) assumed risk as to the truck used by appellee on the occasion of his injuries, as to the alleged failure to furnish a suitable tool and a suitable and modern carriage or appliance with which to do the work, that the piece of machinery which appellee was engaged in moving was improperly crated, was received for shipment in an improper, unsafe, and dangerous condition to be handled for transportation, and that appellant failed to furnish appellee with sufficient help; (c) that appellant and appellee were engaged in interstate commerce, and appellee's cause of action, if any, arose under the Employers' Liability Act of the United States of America (U. S. Comp. St. §§ 8657-8665).

The cause was submitted to a jury on special issues, and, on the answers of the jury thereto, judgment was rendered on the 9th day of October, 1924, in favor of appellee for the sum of $3,500, from which this appeal was prosecuted, and presented to this court by appropriate assignments of error.

We do not think the court erred in refusing to dispose of the case by way of the peremptory instruction requested by appellant, as the evidence which, in view of another trial, will only be meagerly discussed was sufficient to require the cause to be submitted to the jury: (a) On the question of injury; and (b) actionable negligence vel non.

That appellee sustained a hernia on the occasion and in the manner alleged by him, and suffered damage to some appreciable extent therefrom, there can be no question. As to the issue of negligence, while it may be conceded that the evidence as a whole is not so reassuring, yet it is sufficient to present a question of fact for determination by the jury. In brief, the facts upon this issue may be summed up as follows:

Appellee was in the employment of appellant as a trucker of freight, to load and unload freight from and into its cars and freight house. He had been engaged in such service for a period of about twelve years with appellant and other railway companies. He was instructed by the foreman in charge of the work to move a piece of freight weighing about 1,500 pounds from the freighthouse to be loaded into a freight box located on the third track from the freighthouse. On being so directed, he inquired of the foreman if he wanted a "dolly," referring to the appliance commonly used for the moving of bulky or heavy articles of freight. To this query the foreman replied, "No, you may use a truck," a device for the moving of objects of ordinary weight, so generally well known and understood that a description is unnecessary. Acting upon the instructions, which were repeated to another employé engaged in the same service with appellee, a truck was used, the heavy piece of mill machinery safely placed thereon, four employés being necessary for that purpose. The crating around this piece of freight had one piece of plank extending therefrom about six inches. The foreman designated one other truckman, Lonnie Martin, to assist appellee in moving the freight after same had been placed on the truck. They had safely passed through the two intervening freight boxes, and were in the act of entering the freight box in which said freight was to be loaded for transportation, when, in an effort to place said freight therein, the right wheel of the truck broke down, causing said freight to fall against appellee, the projecting end of the crating striking him in the side, and pinning him down to the platform connecting the two cars, producing, as found by the jury, the hernia as alleged by appellee. The first two bridges between the freight boxes were smooth iron; the third one was a large board with a piece across each end to keep it in place, and had lots of holes, which caused the truck in being rolled over it to jerk from side to side; that, while such heavy machinery had been successfully moved from and into freight boxes by means of a truck, yet that was not the proper appliance to use in loading such heavy machinery; that the only safe way to move such heavy freight is with a "dolly"; that an article weighing 1,500 pounds is an extra heavy piece of freight; that a "dolly" has four rollers on it. Some of them have two or four wheels, and some have just one. They are constructed so they can turn easily. The rollers are so constructed that same will support a very heavy load, and freight can be transported on a "dolly" without slipping, as it will hold freight in a steady position while being operated.

We think this was sufficient to require the cause to be submitted to the jury only as to the injuries resulting in the hernia, but, as will later be demonstrated, not as to the other ground on which the right to recover damages is based. Accordingly the assignment based on the refusal of the court to instruct the jury to return a verdict for appellant is overruled.

The shipment being handled by appellee at the time of his alleged injuries was under the facts interstate in character. The property constituting the freight had been received from, and was under transportation by, appellant from Dallas, Tex., to Laredo, Tex. The bill of lading and waybill issued therefor showed the origin of the shipment to be Dallas, and the destination, so far as said instruments were concerned, Laredo, Tex., but were in fact destined for Monterey, Mexico; the bill of lading containing the following provision:

"Consigned to order of Krueger Machinery Company, Destination, Laredo, State of Texas. Notify Monterey Street Railway Light & Power Company at Laredo, State of Texas, Route, I. & G. N."

The property was bought for and to be used by the Monterey Street Railway Light & Power Company in the conduct of its business in the republic of Mexico, and, after said shipment reached Laredo, Tex., it was transported by truck from the freighthouse of the Texas & Pacific Railway Company, appellant's connecting carrier, to the Mexican custom house at Nuevo Laredo, Mexico, through which it passed, and was then shipped by express to Monterey, its place of destination. Immediately on reaching Laredo, the movement of said freight was directed by Geo. E. Teunnison, forwarding agent at Laredo for some mining companies in Mexico, who testified that "we had special instructions on this shipment to forward it by express from Laredo, Tex., on account of the traffic conditions in Mexico at that time"; that he had no instructions to hold the shipment at Laredo, Tex., but had been requested to hurry it forward; that at the time of the shipment of the machinery in question there had been no through freight traffic into Mexico for some time, and it required the intervention of some one there to get it through the custom house. The shipment remained in this country about 24 hours after it was received at Laredo. A revision had to be made according to the Mexican classification. It had to be taken to the warehouse, examined, and classified, and papers made out accordingly before it could pass over into Mexico. After it reached Mexico, a new bill of lading and a new waybill was issued by the Mexican Central Railroad Company to Monterey, Mexico. While the shipment was carried across into Mexico on a truck, it was carried to Monterey by rail. In the movement of this freight it was never intended that its point of destination should be in Texas, but, to the contrary, that through continuous movement its destination was intended to be, and it was shipped for the purpose of being delivered to, the purchaser at Monterey, Mexico....