Hercules, Inc. v. Eilers

• Decision Date: 10 September 1970
• Docket Number: No. 7108,7108
• Citation: 458 S.W.2d 221
• Parties: HERCULES, INC., et al., Appellants, v. Earl EILERS and Peggy Patrick, et al., Appellees.
• Court: Texas Court of Appeals

Page 221

458 S.W.2d 221

HERCULES, INC., et al., Appellants, v. Earl EILERS and Peggy Patrick, et al., Appellees.

No. 7108.

Court of Civil Appeals of Texas Beaumont.

Sept. 10, 1970.

Rehearing Denied Sept. 28, 1970.

George A. Weller, Chilton O'Brien, Beaumont, Richard B. Miller, Houston, for appellants.

Joe H. Tonahill, March H. Coffield, Jasper, Gilbert I. Low, Beaumont, for appellees.

KEITH, Justice.

Glenn Patrick was killed and Earl Eilers seriously injured when a dome lid on a railroad tank car blew of, knocking them to the ground . They were employees of EasTex, Inc. (hereinafter 'EasTex'), owner of a papermill at Evadale, Texas. Union Tank Car Company (hereinafter 'Union Tank') leased a tank car to Hercules, Inc. (hereinafter 'Hercules') for the purpose of transporting crude turpentine to the plant of Hercules in Hattiesburg, Mississippi. The Atchison, topeka and Santa Fe Railway Company (hereinafter 'Santa Fe') was the delivering carrier of the empty car to EasTex.

In this action, Eilers and Mrs. Patrick and her children (hereinafter referred to collectively as 'plaintiffs') were joined by the subrogated Workmen's Compensation Insurance carrier, but we need take no further notice of the latter's presence. Plaintiffs named Hercules, Union Tank and Santa Fe as defendants. Upon certain findings of the jury which we will discuss later, judgment was rendered for plaintiffs and against the defendants, jointly and severally.

The tank car in question, empty except for 140 pounds of liquid ammonia to inhibit corrosion, was shipped by Hercules from Hattiesburg, Mississippi, on September 1, 1967, to EasTex in Evadale, Texas, where it was delivered by Santa Fe as the final carrier. The record is silent as to what, if anything, was done with the car until October 4, when Santa Fe placed it on the turpentine track in the plant of EasTex. The car was equipped with valves which permitted the car to be 'bottom-loaded' with raw turpentine by EasTex. Ordinarily, in order to do so, it was necessary for the dome lid to be raised and a wheel located therein turned so as to open the valve on the bottom of the car. The dome cover or lid was kept in place while the car was in transit by a number of large hinged bolts, which laid down on the top of the car itself after the retaining wing nuts were removed from the bolts.

Hercules offered as its witness a former employee of EasTex, Wells, who testified that in the course of preparing to pump turpentine into the car, he opened the valves thereon after lifting the lid from the dome. Plaintiffs, on the other hand, offered testimony that the bolts holding the lid in place were laying upon the top of the car when it was spotted by Santa Fe and that it was unnecessary to open the valves before pumping started. ¹ In any event, EasTex began loading the car on October 4, and continued pumping from time to time as turpentine was produced until the morning of October 17, when the accident occurred . However, EasTex had discovered on October 15 that the lid was stuck so tightly to the dome that an EasTex workman was unable to dislodge it although he struck it with a large pipe wrench and used a heavy piece of pipe in an effort to prize the lid loose from the dome. The pipefitter, Rush, failing in his efforts to remove the cover, reported to Leroy Mitchell, the tour foreman for EasTex on duty at the time, that it was stuck. Rush and Mitchell had a discussion concerning the methods to be used in removing the cover, including the use of a hydraulic jack. However, it was Sunday, and Rush was on a special call-out, as distinguished from his regular tour of duty, and they never came to any agreement as to what means would be used to dislocate the stuck lid.

During the time the car was on the turpentine track, between October 4 and October 17, EasTex pumped turpentine into the car upon each day for a total of fifteen hours and fifty minutes. Turpentine was pumped into the car for an hour upon October 16 and for an hour again on October 17, After it had been learned that the lid was stuck tightly to the dome. The pumping was stopped at 7:50 a.m., October 17, and the accident occurred ten minutes later.

The car was equipped with standard safety valves approved by the regulatory authorities, designed to relieve internal pressure when it exceeded 25 pounds per square inch (hereinafter 'psi'). With bottom loading under pressure, there was no way for the air in the tank to escape except through the dome; and, with the lid stuck tightly, pressure in the car increased as pumping into the car continued. EasTex, without notifying either Eilers or Patrick that the dome lid had been stuck for two days while he pumping continued, sent them to the top of the car to close the bottom valve so that the car could be shipped. Eilers, the only person in position to testify, stated that just as they got upon the top of the car, the dome lid blew off, killing Patrick and injuring him.

The court submitted more than a hundred special issues in which the jury was subjected to cross-examination upon every theory of law and fact which came to the minds of the inventive and resourceful counsel for the several parties. In essence, the jury failed to find any common-law negligence on the part of any defendant, acquitted Eilers and Patrick of contributory negligence, failed to find that any act or omission of EasTex was the sole cause of the accident, and found that the car was reasonably suited for the purpose for which it was intended, both at the time it was delivered to EasTex and at the time of the accident.

The jury found that the safety valves upon the car were 'safety appliances' under the court's definition, but nullified the effect, if any of the finding by failing to find that the valves did not 'perform properly.' The jury also found that the dome lid 'which was to release the car's internal pressure around its edges when not bolted tight' was a safety appliance under the court's definition; that the dome lid 'failed to operate properly to release the car's internal pressure'; and that this was a proximate cause of the occurrence. We will have occasion to comment more in detail upon these and the remaining issues in connection with our discussion of the questions presented.

The motions of the several defendants for judgment non obstante veredicto, to disregard certain findings, and to enter judgment for the defendants were each overruled. Judgment was rendered in favor of the several plaintiffs against the defendants jointly and severally, from which this appeal is prosecuted. ² The record is lengthy, the briefs are prolix, and many questions are presented for our consideration. Since the liability is based upon the asserted applicability of the Safety Appliance Act, we first consider the Act itself.

The Safety Appliance Acts (45 U.S.C.A. § 1 et seq.) (hereinafter 'Act') does not mention every component making up a car used upon railroad lines. Instead, it is very limited in its scope, although liberally construed by the courts. ³ The Act makes it unlawful for any carrier to use on its lines a locomotive engine not equipped with a power-driving wheel brake, or to run a train that has not a sufficient number of cars in it so equipped with power or train brakes that the engineer on the locomotive drawing such train can control its speed without requiring brakemen to use the common hand brake for that purpose (45 U.S.C.A. § 1); or to use on its line a car 'not equipped with couplers coupling automatically by impact, and which can be uncoupled without the necessity of men going between the ends of the cars' (Id. § 2); or, until otherwise ordered by the Interstate Commerce Commission (hereinafter 'ICC') to use a car 'that is not provided with secure grab irons or handholds in the ends and sides of each car for greater security to men in coupling and uncoupling cars,' (Id. § 4); or to use freight cars, either loaded or unloaded which do not comply with the prescribed standards as to height of drawbars (Id. § 5).

Section 11 of the Act reads:

'It shall be unlawful for any common carrier subject to the provisions of sections 11--16 of this title to haul, or permit to be hauled or used on its line, any car subject ot the provisions of said sections not equipped with appliances provided for in said sections, to wit: All cars must be equipped with secure sill steps and efficient hand brakes; all cars requiring secure ladders and secure running boards shall be equipped with such ladders and running boards, and all cars having ladders shall also be equipped with secure handholds or grab irons on their roofs at the tops of such ladders: Provided, That 'in the loading and hauling of long commodities, requiring more than one car, the hand brakes may be omitted on all save one of the cars while they are thus combined for such purpose. (Emphasis in Act.)

Other provisions of the Act (specifically §§ 12 and 15) grant to the ICC authority to adopt regulations interpreting and standardizing the requirements of the Act as to require safety appliances, and these regulations prescribe detail standards of construction and inspection. ⁴

As to the appliances mentioned in the Act itself, the criterion by which the sufficiency of such appliances is to be judged is the essence of simplicity. Thus, sill steps must be Secure; hand brakes must be Efficient; cars requiring secure ladders and secure running boards shall be equipped with 'such ladders and running boards'; and, cars having ladders shall be equipped with Secure handholds or grab irons on their roofs at the top of such ladders. ⁵ There is no permissible deviation from the standard so set by the Act itself as to the appliances mentioned therein. But, it is equally clear that the Act does not require a perfect car in its entirety. There is no mention, for instance, of wheels which will not break or of doors which are securely attached so as not to fall, or for that...