Hopson v. Gulf Oil Corp.

• Decision Date: 23 February 1950
• Docket Number: No. 4565,4565
• Citation: 237 S.W.2d 323
• Parties: HOPSON v. GULF OIL CORP. GULF OIL CORP. v. HOPSON.
• Court: Texas Court of Appeals

Page 323

237 S.W.2d 323

HOPSON v. GULF OIL CORP.

GULF OIL CORP. v. HOPSON.

No. 4565.

Court of Civil Appeals of Texas, Beaumont.

Feb. 23, 1950.

Rehearing Denied June 21, 1950.

Second Motion for Rehearing Denied July 1, 1950.

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

King, Sharfstein & Rienstra, and John H. Land, all of Beaumont, for appellees.

WALKER, Justice.

Raymond Hopson is plaintiff and Gulf Oil Corporation is defendant in this cause.

On April 6, 1946, plaintiff was upon a vessel, the Gulf of Mexico, which was owned and operated by defendant, and which was then upon the high seas on a voyage between two Atlantic coastal ports of the United States. This vessel was a tanker, and plaintiff was a member of her crew, in defendant's employ. Plaintiff was rated as a 'wiper', whose principal duty seems to have been to clean machines and the engine room and machine shop, but who also was to do what his officers required of him; and on the date mentioned, he was ordered by the First Assistant Engineer, who was one of his superior officers, to empty some barrels of oil into a pipe near the stern of the vessel, and while he was performing this task he trod upon some grease and sat down very suddenly and heavily upon the deck. As a result, he sustained certain injuries, of which the most serious was the rupture of an intervertebral disc. He brought this action against defendant as a consequence and in this action prayed relief upon two causes of action. One of his claims was founded upon the Jones Act, to-wit, U.S.C.A., Title 46, § 688; he charged defendant with negligence in various respects and prayed recovery of damages. His other claim was for maintenance and cure under the general Maritime law.

Defendant, by way of answer, plead several special exceptions, a general denial, contributory negligence, that plaintiff's own neglect was the sole cause of his injuries, and that the plaintiff's injuries were the result of an unavoidable accident.

The cause was tried to a jury who, in response to various special issues, made the following findings:

(Issue 1) Plaintiff was injured on or about April 6, 1946. (1-A) This injury was caused by plaintiff's slipping and falling upon the deck, and (2) was received in the course of plaintiff's employment on board defendant's steamship.

(Issue 2-A) Plaintiff's injuries were not the result of an unavoidable accident.

(Issue 3) Defendant, acting by and through its agents, servants and employees other than plaintiff, allowed a greasy substance to be on the deck at and near the place where plaintiff was emptying oil. (3-A) But a preponderance of the evidence did not show that defendant allowed said greasy substance to remain on the deck for such a period of time that in the exercise of ordinary care, the same should have been discovered and removed prior to plaintiff's fall. (4 & 5) These issues submitted negligence and proximate cause with respect to the subject matter of Issue 3; they were not answered because they were conditioned upon an affirmative answer to Issue 3-A. (14) The preponderance of the evidence did not show that plaintiff's failure to see the greasy substance before he stepped therein was negligence; and (17) the preponderance of the evidence did not show that such greasy substance was open and obvious to plaintiff. (21) The preponderance of the evidence did not show that plaintiff failed to keep a proper lookout as to the condition of the deck at the place where he fell. (25) The preponderance of the evidence did not show that the accumulation of such greasy substance was caused by plaintiff's permitting oil to escape from the drum he was emptying just before his fall. (26) The preponderance of the evidence did not show that plaintiff failed to inspect the condition of the deck where he was working prior to his fall.

(Issue 6) Defendant failed to furnish plaintiff assistance in emptying the drums of oil. (7) This failure was negligence, and (8) this negligence was a proximate cause of plaintiff's injuries.

(Issue 12) Plaintiff's damages from defendant's negligence were assessed at $29,348.

(Issue 13) $2700 would provide reasonable medical care and maintenance such as had already been or might be in the immediate future necessary and proper in the treatment of plaintiff's injury.

The only findings convicting defendant of negligence were those made under Issues 6, 7 and 8; and defendant filed a motion, alleging that these findings had no support in the evidence and praying that said findings be disregarded. Plaintiff moved for judgment upon the verdict for the sums found in damages and for maintenance and care.

The trial court found that Issues 6, 7 and 8 had no support in the evidence, granted defendant's motion and rendered judgment in disregard of the findings made under said issues, denying plaintiff any recovery of damages from defendant. Upon plaintiff's claim for maintenance and cure, the trial court rendered judgment in behalf of plaintiff for the sum found by the jury, to-wit, $2700. Both parties excepted to this judgment and each has taken an appeal therefrom. We shall consider first the plaintiff's appeal and next, the defendant's

Points Filed in Plaintiff's Appeal.

Plaintiff has filed 15 Points of Error for reversal but these points raise only two contentions, as follows: First: The findings under Issues 6, 7 and 8 were supported by the proof and thus the trial court should have rendered judgment upon said findings in plaintiff's behalf for the sum in damages found under Issue 12. Second: In the alternative, if defendant's motion was good, the trial court, for various reasons, erred in conditioning Issues 4 and 5 upon an affirmative answer to Issue 3-A. As stated above, Issues 4 and 5 submitted the questions of negligence and proximate cause respecting the subject matter of Issue 3, that is, defendant's allowing the grease in which plaintiff trod to be upon the deck.

The following proof is relevant to these contentions, and since the trial court's act in disregarding the findings under Issues 6, 7 and 8 can only be reviewed upon a consideration of the whole relevant proof, we state this in detail:

Plaintiff was engaged in emptying a drum of oil into a pipe leading from the deck into the engine room when he fell. This oil went into the ship's engines and lubricated them; and it was customary to put several drums of this engine oil into this pipe while the ship was at sea, usually about two days after leaving port. This pipe was at the rear of the ship; and plaintiff said that previously, on the day already mentioned, he and either one or two other seamen had been directed by the First Assistant Engineer, who was their superior officer, to move 5 or 6 drums of this engine oil from another part of the ship, where the drums were stored, to a place near this pipe where they might be conveniently emptied into the pipe, and that they had done this, rolling the barrels along the deck to a place near the pipe, where the barrels were then placed upon end. After these 5 or 6 barrels had been moved in this way, the First Assistant Engineer directed plaintiff to empty the barrels into the pipe, and he sent the other seaman or seamen, off to do something else. At any rate, plaintiff was left alone to empty the barrels.

The barrels were made of steel, contained 50 or 55 gallons of engine oil, and when full were very heavy. The First Assistant Engineer testified that one of these barrels would weigh 'something like 350 or 400 pounds.'

Simple machinery, referred to in the proof as a chain fall, was provided for emptying these barrels, and this equipment and the procedure followed by plaintiff in emptying the barrels may be described as follows: The chain fall consisted of steel chains running through a steel block which hung from a beam above the opening of the pipe. It contained a device which made it self-locking so that when plaintiff lifted a barrel with this fall, the barrel was held suspended by the fall, without assistance from the plaintiff. The fall itself was a short distance (some 2 or 3 feet, we infer) from the opening of the pipe. At the lower end of the fall there was a heavy steel hook. The opening of the pipe was flush with the deck and was closed with a screw plug when not in use. In order to empty a barrel of oil into the pipe, this plug was removed; an ell pipe with a closed value in it was screwed into the top of the barrel in an opening made for that purpose; a sling of steel chain, called a barrel sling, with hooks at each end, was attached to the barrel by putting the hooks over the rims at the two ends of the barrel; the hook at the bottom of the chain fall was put under this sling; the person operating the fall then tugged upon it and doubtless tilted the barrel at the same time, thus lifting the barrel and turning it so that it became parallel with the deck; and when the barrel was an appropriate distance above the deck and turned in this way, the ell pipe in the end of the barrel was brought around and screwed into the mouth of the pipe in the deck. While this connection was being made, the locking device in the fall supported the barrel automatically. According to the First Assistant Engineer, although the plaintiff does not mention it, another opening referred to by the engineer as the 'bleeder' was then made in the top of the drum, and then the valve in the ell was opened and the oil was allowed to drain out of the barrel into the pipe. Usually, the barrel being about level as it hung in the chain fall, a few gallons of oil would remain until the barrel was tilted, and two methods of tilting the barrel as it hung in the fall are mentioned in the proof. The Chief Engineer who testified that he had devised this machinery and this method of getting the oil into the engine room, said that the barrel was tilted 'by moving the hook to one end of the drum'. The First Assistant Engineer,...