Henwood v. Neal

• Decision Date: 25 November 1946
• Docket Number: No. 5728.,5728.
• Citation: 198 S.W.2d 125
• Parties: HENWOOD v. NEAL.
• Court: Texas Court of Appeals

198 S.W.2d 125

HENWOOD v. NEAL.

No. 5728.

Court of Civil Appeals of Texas. Amarillo.

November 25, 1946.

Appeal from District Court, Grayson County; W. C. Dowdy, Judge.

Action by Jesse Neal, against Berryman Henwood, trustee, St. Louis Southwestern Railway Company of Texas, debtor, for damages for personal injuries. From an adverse judgment, defendant appeals.

Judgment affirmed.

Ramey, Calhoun, Marsh, Brelsford & Sheely, of Tyler, for appellant.

Webb, Elliott & Rogers, of Sherman, for appellee.

BOYCE, Justice.

This is a suit for damages under the Federal Employers Liability Act, §§ 1-9, 45 U.S.C.A. §§ 51-59. It was brought by the appellee, Jesse Neal, as plaintiff, against the appellant, Berryman Henwood, Trustee, St. Louis Southwestern Railway Company of Texas, Debtor, for personal injuries sustained by appellee while employed by the appellant as a section hand. The appellee alleged an injury to his left eye, which resulted in its removal. In a jury trial, he obtained a verdict in the amount of $4,210.00, together with interest and costs; judgment in his favor was entered on this verdict.

The substance of the allegations upon which appellee relies for recovery is: That on the 3d day of April, 1944, while in the employ of the appellant as a section hand and while engaged in the duty of gauging tracks, he struck a tie with a pick furnished by appellant; that a sliver of metal came loose from the pick, struck appellee's left eyeball, causing injuries which required its removal; that the appellant was negligent in providing him with a pick which was so improperly tempered that it splintered when it struck the tie and in failing to have the tool properly inspected. The jury found that the appellee sustained the alleged injury to his eye; that a sliver of metal came loose from the pick and struck him in the left eye; that the pick was not properly tempered or properly inspected; that the failure of appellant to properly temper the pick was negligence and that his failure to properly inspect it was negligence; that each of these omissions was a proximate cause of the injury to appellee's eye.

It is not seriously questioned that it was appellant's duty to furnish appellee a properly tempered pick. Freeman v. Wilson, Tex.Civ.App., 149 S.W. 413, 418; Id., Tex.Com.App., 222 S.W. 551, 552. The appellant, in his first three points of error attacks the sufficiency of the evidence to support the findings that a sliver of metal came loose from the pick and that he was quilty of any negligence proximately causing the injuries sustained by appellee. In passing upon the sufficiency of the evidence to support the verdict, we are required to view it in the light most favorable to appellee. If, disregarding all adverse evidence and giving credit to all evidence favorable to him and indulging every legitimate conclusion favorable to him which may be drawn from the facts proved, it supports the verdict, the verdict must be sustained. Vontsteen v. Rollish, Tex.Civ. App., 133 S.W.2d 589, 590, writ of error refused.

The evidence favorable to appellee is summarized as follows:

In gauging rails, it is customary for the point of a pick to be inserted in the tie as near the flange of the rail as possible; when this has been done, the rail can be moved by exerting pressure on the pick handle, which affords the required leverage. The injury occurred while appellee was working in the switch yards in Sherman; on the occasion on which appellee was injured, he struck the tie with the point of the pick and immediately felt some substance strike his left eye; he informed his foreman that something had hit him in the eye, finished his task of moving the rail to its proper position on the tie and then went to a doctor in Sherman. This doctor bandaged appellee's eye and sent him to the railroad employees' hospital at Texarkana. While enroute to Texarkana that same day, because of the pain he was suffering, appellee removed the bandage from his eye and discovered a sliver of metal on the bandage. Appellee's eye was removed at the Texarkana hospital. After returning from the hospital, he went to the scene of his injuries. His place on the section crew had not been filled since his injury. Each member of the crew, including appellee, had had a pick and other tools which he marked and used. It was not customary for members of the crew to use tools other than those which they had marked as their own. On the return, appellee saw the pick which he had used, being able to identify it by the mark which he had placed an the handle. He examined the pick and observed that a sliver had come off the point about one-half inch from the tip. At this time he also saw where the pick had penetrated the tie at the time he was hurt and examined the rail opposite the spot at which the pick had struck the tie. There were no indications that the pick had struck the rail. Appellee's foreman had previously examined the rail at this place and failed to find any evidence that the pick had struck it. Appellee testified that on the occasion on which he was injured the pick struck a knot in the tie; that the object which struck him in the eye was neither a cinder nor a rock, because there were no cinders or rocks at that place. His return to the scene of the injury occurred more than two months after the injury was sustained.

Dr. Kirkpatrick testified that appellee lost his eye as the result of an infection following the bruising of the eye; that in his opinion the blow received on the eye allowed the infection to occur.

The appellee's foreman testified picks used by the section hands were from time to time reshaped and sharpened in the railroad blacksmith shop. The...