Hopson v. Gulf Oil Corp.

• Decision Date: 21 February 1951
• Docket Number: No. A-2868,A-2868
• Citation: 237 S.W.2d 352,150 Tex. 1
• Parties: HOPSON v. GULF OIL CORP.
• Court: Texas Supreme Court

Page 352

237 S.W.2d 352

150 Tex. 1

HOPSON v. GULF OIL CORP.

No. A-2868.

Supreme Court of Texas.

Feb. 21, 1951.

Rehearing Denied March 21, 1951.

Adams, Browne & Sample, Beaumont, Fisher & Tonahill, Jasper, for petitioner.

John D. Rienstra and John H. Land, Beaumont, for respondent.

SMEDLEY, Justice.

Petitioner, a seaman on respondent's tanker, filed this suit against respondent for recovery under the Jones Act, Title 46 U.S.C.A. § 688, of damages for injuries suffered by him on account of alleged negligence of respondent, and petitioner sued also for maintenance and cure. After a jury verdict, which found negligence on the part of respondent proximately causing petitioner's injuries and an amount for damages, the trial court rendered judgment, notwithstanding the verdict, that petitioner take nothing by his suit for damages and that he have judgment against respondent in the sum of $2700 for maintenance and cure.

The court of Civil Appeals, 237 S.W.2d 323 affirmed the trial court's judgment, except that it required a remittitur reducing the award for maintenance and cure to $1876.80. No question is presented in this Court with respect to the judgment for maintenance and cure.

By the terms of the Jones Act under which this suit is brought, petitioner's action is for damages at law, the right of action being for injury or death resulting in whole or in part from the negligence of any of the officers, agents or employees of the ship or by reason of defects or insufficiency, due to its negligence. This is by reason of the incorporation into the Act of the provisions of the Federal Employers' Liability Act, Title 45 U.S.C.A. § 51 et seq. Premeaux v. Sacony-Vacuum Oil Co., 144 Tex. 558, 564, 192 S.W.2d 138; Baltimore Steamship Company v. Phillips, 274 U.S. 316, 47 S.Ct. 600, 71 L.Ed. 1069, 1073; Jacob v. City of New York, 315 U.S. 752, 62 S.Ct. 854, 86 L.Ed. 1166, 1169.

Petitioner was employed as a 'wiper' on respondent's tanker. He worked under the direction of the ship's first assistant engineer. When the ship was about two days out of port petitioner was directed by the first assistant engineer to empty several drums of oil into a pipe on the deck that carried oil to the engine room. He and two other 'wipers' rolled the drums of oil from the forward part of the ship to the stern of the ship, where the oil was to be poured through the pipe into the engine room. After the drums had been rolled to the place where they were to be emptied the first assistant engineer called the other two 'wipers' away and left petitioner there by himself to empty the drums. The drums were of steel, held from 50 to 55 gallons of oil, and when full weighed from 350 to 400 pounds. There was a device for lifting the drums described as a 'chain fall'. A chain called a 'barrel sling' was attached to the ends of the drum by hooks and the 'barrel sling' was placed on a hook at the end of the 'chain fall', the chains being so arranged that the drum could be raised from the deck merely by pulling the chain on the 'chain fall'. Attached to one end of the drum was a pipe with an elbow in it and a union on the elbow, which, when the drum was lifted, would be fitted to the pipe that ran into the engine room.

The first assistant engineer told petitioner how to 'rig up the chain hoist and attach the barrel sling and lift the drum and attach it onto the pipe in the deck.' Petitioner had never before done that kind of work. He had emptied two or three of the drums and was engaged in emptying the third or fourth when he was injured. After all of the oil, except eight or nine gallons, had run out of the drum, he began to lift the end of the drum so that the oil that was left in the drum would run into the pipe, and while he was lifting it his foot slipped and he fell to the deck, suffering the injuries on account of which he sues. Petitioner testified that he was lifting about 70 or 80 pounds, including the drum and the oil remaining in it. After he fell he discovered that he had slipped on a spot of grease about four to six inches in diameter. The end of the hanging drum was over the spot of grease and he had not seen it before he fell. He did not know where the grease came from or how long it had been on the deck.

In answer to special issues the jury found that respondent failed to furnish petitioner assistance in emptying the drums of oil that its failure to do so was negligence, and that the negligence was a proximate cause of petitioner's injuries. These findings were disregarded by the trial court in rendering judgment that petitioner take nothing by his suit for damages; and the Court of Civil Appeals, while holding that there is evidence to support the first two of the findings, held that the finding as to proximate cause is wholly without support in the evidence.

There is evidence that respondent failed to furnish petitioner assistance. Petitioner testified that two other 'wipers' helped him in rolling the drums to the place where they were to be emptied, but that the first assistant engineer then called them away and left him alone to empty the drums and that no one helped him. He further testified that he asked the first assistant engineer to permit one of the men to stay to help him and that the engineer said he would let one of them come back when they finished work in the engine room.

After careful consideration of all of the evidence, our opinion is that the evidence raises issues of fact both as to negligence and as to proximate cause. The task that petitioner was directed to perform was neither simple nor easy of performance. It involved the handling of very heavy drums of oil while the ship was at sea, the raising of the drums from the deck by the adjustment and use of not very simple appliances, the chain fall and the barrel sling, the connecting of the pipe in the drum with the pipe in the deck, and finally the elevating of the end of the drum either by adjusting the barrel sling or by lifting so that all of the oil would run out. Petitioner testified that he had never before done that kind of work. He further testified that this was 'a pretty hard job, a two man job', and that it was 'pretty straining on one man', and that if he had been given the assistance of another man he could have performed the task more safely. These opinions of petitioner were admitted in evidence without objection. Bearing more directly on the question of negligence is the testimony of the first assistant engineer that while he usually emptied the drums without help, he assigned two men to empty them when he did not do it himself. The facts in evidence above mentioned, considered in connection with the rule of foreseeableness which has relation both to negligence and to proximate cause, constitute at least some evidence from which it reasonably may be inferred that respondent, for petitioner's protection, owed the duty to him to furnish him assistance in emptying the drums, and that its failure to perform that duty was negligence.

The question whether there is any evidence to support the finding of proximate cause is more difficult. Petitioner's testimony as to the occurrence of his injuries is that when he was lifting the end of the drum so that all of the oil would run out he slipped on a spot of grease that he had not seen and fell to the deck and was injured.

Two elements or tests of proximate cause are causation and the limitation to foreseeable consequences. As to causation, it is said that if the defendant's act or omission was a substantial factor in bringing about the result, it will be regarded as a cause, and that ordinarily it will be such a substantial factor if the result, would not have occurred without it. Prosser on Torts, p. 321, § 46. In our opinion the jury was not engaged in mere speculation, but was drawing a reasonable inference in reaching the conclusion that respondent's failure to furnish petitioner a helper was a substantial factor in bringing about his fall and injury. Petitioner slipped on the spot of grease, and he testified that the grease caused him to fall. But it is apparent that he knew nothing of 'sole cause' or of 'proximate cause', and that he was not meaning to exclude as a cause, or as one of the causes, respondent's failure to furnish him a helper. The spot of grease was a condition that contributed to petitioner's injury, or it may be regarded as a concurring cause. The jury could, and no doubt did, take into consideration these facts: that petitioner had no experience in this kind of work, that it was work to which the first assistant engineer always assigned two men when he did not perform it himself, that it was performed on the deck of the tanker when it was at sea, that since the vessel was a tanker the presence of oil or grease on the deck was at least probable, the weight of the drums and the oil in them, the somewhat complicated chain fall and barrel sling used to lift the barrel. And, taking these things into consideration, it was not unreasonable for the jury to believe that the absence of a helper was a proximate cause of petitioner's fall and injuries. If two men together had been lifting the end of the drum, it is reasonably probable that neither of them would have slipped on the spot of grease which was directly under the end of the drum. And it is reasonably probable that had there been two men working together they would have been able to raise the end of the drum by adjusting or moving the barrel sling or the hook on the chain fall so that neither of the men would need to place himself at the end of the drum to lift it. It could reasonably be inferred from the testimony of the assistant engineer, which shows that he regarded the task as one to which two men should be assigned, that the work would have been accomplished by two men together with less risk, or without any considerable risk of injury to either of them, and that it was more probable that respondent's failure to...