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

• Court: Texas Civil Court of Appeals
• Writing for the Court: GRISSOM
• Citation: Gulf, C. & S. F. Ry. Co. v. Deen, 306 S.W.2d 171 (Tex. Ct. App. 1957)
• Decision Date: 27 September 1957
• Docket Number: No. 3135,3135
• Parties: GULF, COLORADO & SANTA FE RAILWAY COMPANY, Appellant, v. Earl R. DEEN, Appellee.

Page 171

306 S.W.2d 171

GULF, COLORADO & SANTA FE RAILWAY COMPANY, Appellant, v. Earl R. DEEN, Appellee.

No. 3135.

Court of Civil Appeals of Texas, Eastland.

Sept. 27, 1957.

Rehearing Denied Oct. 25, 1957.

Woodruff & Holloway, Brownwood, Hudson, Keltner & Sarsgard, Ft. Worth, for appellant.

David C. McCord, Robert Lee Guthrie, Dallas, for appellee.

GRISSOM, Chief Justice.

We formerly held that the jury findings and undisputed evidence established that the railroad company furnished one safe way to do the job Deen was doing when he broke his leg; that the employee was not directed to do the work in the manner in which he did it; that the employer had no duty to furnish more than one safe way to do the work and, therefore, the evidence did not support the jury's conclusion that the employer was negligent in failing to furnish tools to handle the pot. Therefore, we rendered judgment for the employer. See Tex.Civ.App., 275 S.W.2d 529. The Supreme Court of Texas refused to grant a writ of error. Thereafter, in Port Terminal Railroad Ass'n v. Ross, Tex., 289 S.W.2d 220, 225, it expressly approved our holding that the verdict and undisputed evidence established that the railroad furnished one safe way to do the job and that it was under no duty to furnish more than one. It said:

'There is now pending in this court a motion for rehearing on the application for writ of error in Gulf, C. & S. F. Ry. Co. v. Deen, Tex.Civ.App., 275 S.W.2d 529, which is analogous in many respects to the present case. The railroad employee was there injured while he and another workman, Snow, were attempting to remove a slab of hardened babbitt from a melting pot which resembled a kitchen sink. It was customary for five or six men to grasp one rim of the pot and turn the same away from them and dump the babbitt therefrom. On the occasion in question the petitioner prepared to empty the pot alone, but Snow volunteered to assist him. The two men first attempted to turn the pot away from them, but were unable to do so. With considerable effort they were able to and did turn the pot toward them, and the babbitt fell out and injured the petitioner's leg. Petitioner alleged that the carrier was under the duty to furnish proper tools to remove the babbitt, or in the alternative to provide sufficient help to remove the babbitt without the use of tools, and that the railroad was negligent in failing to furnish proper tools and in failing to provide sufficient help. On the question of proper tools, it was petitioner's contention that the pot should have been equipped with clamps which would enable one workman to pick it up with a hoist and turn it away from him. The evidence shows that with the help of one additional man, petitioner and Snow could have turned the pot away from them and dumped the babbitt in the usual manner. The jury found that the petitioner's injuries were proximately caused by the negligent failure of the railroad to furnish proper tools, but that it did not fail to furnish one or more additional men, other than Snow, to assist petitioner in removing the babbitt. There is no evidence showing that the method of work furnished by the railroad, i. e., the manual dumping of the pot by three or more men, was not reasonably safe. We agree with the Court of Civil Appeals that the verdict of the jury and the undisputed evidence establish that the railroad furnished one reasonably safe way to do the job and therefore was under no duty to furnish a second method of performing the work.

'The petitioner in the Deed case argues, as does the plaintiff in the present case, that under the Federal Employers' Liability Act [45 U.S.C.A. Sec. 51 et seq.] as interpreted and applied by the Supreme Court of the United States, the question of the carrier's negligence is for the jury, and that the trial or appellate court cannot substitute its judgment for that of the jury. The opinion in Bailey v. Central Vermont Railway, Inc., 319 U.S. 350, 63 S.Ct. 1062, 87 L.Ed. 1444, states that a railroad employee will be deprived of a goodly portion of the relief which Congress has afforded him if he is denied a jury trial in a close or doubtful case. And it has been stated that the Supreme Court of the United States is paying lip service to the doctrine that liability in these cases is based only upon fault, but that its standard of fault is such as to indicate that the principle is without much practical meaning. See dissenting opinion of Mr. Justice Jackson in Wilkerson v. McCarthy, 336 U.S. 53, 69 S.Ct. 413, 93 L.Ed. 497.

'In an action under the Federal Employers' Liability Act, the question of what constitutes negligence, and the sufficiency of the evidence to raise that question for the jury, is to be determined by the applicable federal decisions. The decisions of the Supreme Court which are cited by the parties represent only that Court's appraisal of the facts there involved, and are of little assistance in the determination of the cases which are not factually analogous. So long as that C...