Gulf, Colorado & Santa Fe Ry. Co. v. Waterhouse, 4589.

• Decision Date: 22 September 1949
• Docket Number: No. 4589.,4589.
• Citation: 223 S.W.2d 654
• Parties: GULF, COLORADO & SANTA FE RY. CO. v. WATERHOUSE.
• Court: Texas Court of Appeals

223 S.W.2d 654

GULF, COLORADO & SANTA FE RY. CO. v. WATERHOUSE.

No. 4589.

Court of Civil Appeals of Texas. Beaumont.

September 22, 1949.

Rehearing Denied October 26, 1949.

Kenley, Sharp, & Shepperd, Longview, Wigley, McLeod, Mills & Shirley, Galveston, McLeroy & McLeroy, Center, for appellant.

Fisher & Tonahill, Jasper, Lane & Anderson, Center, for appellee.

WALKER, Justice.

On August 13, 1947, Marvin Waterhouse was employed by Gulf, Colorado & Santa Fe Railway Company as a section hand, and during the afternoon of that day was engaged in cutting brush on the Railway Company's right of way in Shelby County under the direction and supervision of his foreman. He became overheated while doing this work, and as a result sustained serious injuries. Subsequently, he brought this action under the Federal Employers' Liability Act, 45 U.S.C.A. § 51 et seq., alleging that he was caused to become overheated and that his injuries had been caused by various negligent acts and omissions on the part of his employer and praying recovery of damages from said employer accordingly. Marvin Waterhouse is referred to hereinafter as Plaintiff, and the Railway Company as Defendant.

The Defendant, among other matters, plead that Plaintiff was an experienced workman who knew what he had to do and his own physical capacity to perform his duties, and that Plaintiff's injuries were caused wholly or in part by his own failure to exercise care for his safety.

The cause was tried to a jury, and of their findings the following are relevant: (Issue 3) The duties assigned Plaintiff by his foreman during the afternoon of August 13, 1947, subjected Plaintiff to a hazard from heat which was greater than ordinary. (4) The foreman was negligent in assigning to Plaintiff such duties as he did on the afternoon of August 13, 1947, (5) and this negligence was a proximate cause of Plaintiff's injury. (6) Before sustaining injury on August 13, 1947, Plaintiff informed his foreman that he was getting too hot. (7) After Plaintiff informed the foreman that he was getting too hot, the foreman directed Plaintiff to continue working. (7-a) After being directed by the foreman to continue working, Plaintiff resumed the usual duties of the task he had been assigned. (8) In directing Plaintiff to continue working after being informed by Plaintiff that he was getting too hot, the foreman was guilty of negligence, (9) which was a proximate cause of Plaintiff's injury. (11 and 17, the same) A preponderance of the evidence did not show that on the time and occasion in question Plaintiff disregarded his own safety, or (14) failed to quit work before he became overheated, or (20 and 23, identical), knowing his own strength and ability, failed to stop work after becoming overheated, or (26) failed to keep a proper lookout for his own safety. (28) Plaintiff's injuries were not the result of an unavoidable accident.

Under Issue 10, the jury assessed Plaintiff's damages at $7,000, and the trial court rendered judgment for Plaintiff against Defendant for this sum. From this judgment Defendant has appealed.

Defendant has assigned 7 Points of Error for reversal.

In Points 1 to 5, inclusive, Defendant says that there is no proof of any negligence on Defendant's part. The argument goes further and raises a question of causation, but we shall treat the argument as raised by the Points of Error.

The following evidence, most of it from Plaintiff's testimony, is relevant to these five Points:

(a) Plaintiff was a Negro man, and on August 13, 1947, the date he became overheated, he was 40 years old.

He had spent his entire life in Shelby County, and had always earned his livelihood by manual labor. His formal education ended with the 4th grade. Until about six years prior to August 13th, he had been a farmer. Then he secured employment in which he operated an ice truck, and he did this until some time in February, 1947, when he was employed by Defendant. He worked for Defendant as a member of a section gang, that is, a crew of workmen who maintained Defendant's tracks and kept the right of way in order, from the time he was hired until he became overheated on August 13, 1947, and he returned to work for Defendant on the following Monday. He said that he found himself unable to work and that he returned home. According to his testimony he has been unable to, and has done no work of any consequence since that time. Plaintiff said that before this incident of August 13, 1947, he had been a strong able-bodied man, accustomed to doing hard manual labor; that he had been regularly employed; and that he had had no trouble getting and keeping employment.

There was testimony from some of Defendant's witnesses (and none to the contrary) that Plaintiff had been a good workman while in Defendant's employ. Joe Gardner, a member of Plaintiff's gang, said that Plaintiff did as much work as the other members of the gang, and that Plaintiff seemed to be strong and able and willing to work. Plaintiff's foreman said that Plaintiff made a good "hand". He testified: "He done pretty good work. Right." Plaintiff said that he worked regularly, six days a week, for Defendant.

(b) The foreman of Plaintiff's gang was T. A. Jackson. Mr. Jackson directed and supervised the work of Plaintiff's gang. He had employed Plaintiff originally to work for Defendant, and he had authority to hire and to discharge his subordinate workmen.

(c) During the morning of August 13, 1947, Mr. Jackson had his gang (including Plaintiff) at work cutting grass around some bridges. This task was completed shortly before noon; and Mr. Jackson moved the gang farther along the track to a cattle guard where they had work to do and there they ate their dinner. At 1:00 o'clock P.M., Mr. Jackson divided his gang, and put Plaintiff and two others to cutting brush on the Defendant's right of way. The remainder of the gang were put to cutting grass around the cattle guard.

This was the first time that Plaintiff had had to cut brush for Defendant. He had done such work around his farm, however.

(d) Plaintiff said that the place where he was working "was right in the woods; pasture; thickety all grown up around the cattle guard." By "thickety grown up" he meant "lots of brush; knee high on up to higher than my head; higher."

This brush was of oak and pine, and some of that which Plaintiff had to cut was as large as Plaintiff's arm.

There was grass in the right of way. Plaintiff said: "It was up about knee high in briars."

The right of way at this point ran through woods. The timber came up to the fences. However, Plaintiff said that it was more open about the cattle guard. He was unable to state the distance of the fences from the tracks, and the proof does not show how far away from the cattle guard he was.

Plaintiff used an implement for cutting brush which he called a brush axe, and he described it as follows: "It was an outfit about that long (indicating), with a hook on it, bill on it. I reckon it weighed about seven or eight pounds; long handle thing. I used it with both hands. You don't swing it or use it like a shovel. You chop with it."

It is apparent that cutting such brush as Plaintiff described, with such an instrument, was arduous labor. Plaintiff referred to some of the things he customarily did, saying that his gang pulled track, put in ties, laid rails, and cut grass; and he said that cutting brush was more arduous than cutting grass, or lining tracks, or things of that kind. Mr. Jackson testified:

"Q. Brushing is a hot job, isn't it? A. Cutting right of way is pretty hot.

"Q. That's about the hottest job you have on the-a section gang does, isn't it? A. Well, I couldn't say that. It's all pretty hot out on that railroad.

"Q. That, though is hotter than usual when you put them in there in brush up to their neck and shoulders and start them to using a brush axe, isn't it? A. I don't know whether it would be any hotter than just ordinary work.

"Q. It would be in a hotter spot, wouldn't it, than they ordinarily work in? A. Well, I would say that in the evening part of the day that it would be a little hotter cutting right of way, because it would be down where no air at all could get to you. Naturally, in the evening, it is warmer than it is in the morning part of the day.

"Q. And assuming that it was in the afternoon, well, it would be hotter than ordinary work. A. Yes.

"Q. That you do on the railroad? A. Yes, I think — I would think so.

"Q. It would expose a man to more hazard from the heat than any other type work. A. Yes.

"Q. That you do, wouldn't it? A. Yes, sir."

There was other work than this brush cutting to which Plaintiff and his gang could have been assigned. Mr. Jackson said that he could not at the time keep up with the work he had to do.

(e) The weather during the afternoon of August 13th seemed to the Plaintiff to be very hot and sultry; and he said that he felt no breeze while at work. Later in the afternoon, apparently after he had stopped cutting brush, there came a very sudden and very hard rain; he and the others were wet by this rain.

All of the proof concerning temperature and humidity is in the form of opinions, expressed in such general terms as "awful hot" and "really hot".

(f) Plaintiff's description of how he became overheated, and of what occurred between him and his foreman, was as follows: He said that he worked there that afternoon about half an hour (cutting brush) before anything happened to him. "I was chopping and I commenced to feeling dizzy about my head. Well, I told some of them boys working with me, I says, `I'm getting kind of crazy about my head, getting too hot or something.' They said, `Well, you better rest.' So I went on * * * I commenced to getting funny about the head, getting too hot, way I was feeling. I stuck my axe up in the ground, went up where Mr. Jackson was, told him I was feeling dizzy and crazy about my head. He was up there in the shade...