Houston Belt & Terminal Ry. Co. v. Rogers

• Court: Texas Court of Appeals
• Writing for the Court: Graves
• Citation: Houston Belt & Terminal Ry. Co. v. Rogers, 44 S.W.2d 420 (Tex. App. 1931)
• Decision Date: 22 October 1931
• Docket Number: No. 9551.,9551.
• Parties: HOUSTON BELT & TERMINAL RY. CO. v. ROGERS et al.

44 S.W.2d 420

HOUSTON BELT & TERMINAL RY. CO. v. ROGERS et al.

No. 9551.

Court of Civil Appeals of Texas. Galveston.

October 22, 1931.

Rehearing Denied December 10, 1931.

Appeal from District Court, Harris County; Roy F. Campbell, Judge.

Suit by J. P. Rogers and another against the Houston Belt & Terminal Railway Company, in which defendant filed a cross-action making the Petroleum Iron Works a party. From the judgment, defendant appeals.

Affirmed.

Andrews, Streetman, Logue & Mobley and T. A. Slack, all of Houston, for appellant.

S. O. Lovejoy, Cole, Cole, Patterson & Kemper, and W. L. Kemper, all of Houston, for appellees.

GRAVES, J.

Pursuant to a jury's verdict on special issues, the appellee, an employee of the Petroleum Iron Works, a corporation, was awarded $7,500 damages against the appellant as for its negligent failure to furnish him, an invitee thereon for the purpose of loading steel by means of a crane located on a "team track" of the railway company in its Houston yards from the ground beside this track onto his employer's autotrucks, safe premises upon which to so do that work, in that they were both inadequate and in defective condition; the crane having in consequence turned over under his own operation thereof in thus attempting to transfer the steel, breaking and pulling up one of the railroad rails along with it, the mishap inflicting serious personal injuries upon him.

The iron works, appellee Rogers' employer at the time, carried with the Standard Accident & Insurance Company a policy of compensation insurance that covered him, and, having been brought into the suit through a cross-action filed against it by appellant under averments that its negligence had either wholly caused or contributed toward causing the appellee's injuries, was accorded a peremptory acquittal of any such alleged liability by the court.

The insurance company, also a party, was given a $2,426 apportionment out of the appellee Rogers' judgment, pursuant to an assignment for that much thereof that had been filed in the cause by himself and his attorney.

Inveighing here through able counsel, not alone against all substantive features of this judgment as rendered, but also against many of the procedural processes by means of which it was arrived at, appellant earnestly urges that the evidence was insufficient either to take the cause to the jury in the first instance or to support the findings thereafter made; that the verdict returned afforded no proper basis for the judgment because of both self-destructive internal conflicts and the absence of findings necessary to the support of a recovery at all, and that the answers to the special issues submitted were so contrary to the overwhelming weight of the testimony as to palpably indicate that the verdict was based alone upon passion, prejudice, or other improper motive; further, that the court reversibly erred in admitting testimony over its objection, particularly in receiving certain alleged bills of lading purporting to evidence the consignment of the steel the appellee was handling when injured to his employer, Petroleum Iron Works, over appellant's railway tracks, and in overruling certain of its exceptions to the charge given the jury.

In short, the leading contention is that the theory on which the trial court submitted the cause to the jury, that the evidence raised the issue of the appellee's having been an invitee on appellant's track for the work he was injured in doing, to whom it was due the use of ordinary care in the furnishing of safe premises for the purpose, was all wrong; wherefore its request for a peremptory instruction should have been given, or the verdict should have been set aside because neither it nor the supporting evidence reflected any facts constituting the appellee such an invitee nor furnishing any basis upon which a duty on appellant's part to furnish him a safe place to do the work could be predicated.

The appended argument is that, while the railway yards and tracks upon which the steam crane was being so operated by the appellee at the time were those of the appellant, they were only what were known as and intended for "team" or yard tracks, and were then in normal condition for that use; that the crane did not belong to appellant, nor was there any showing how the steel being handled with it came to be there beside its tracks, nor of any contractual or other connection with or knowledge of such operations on appellant's part, nor of any benefit or consideration whatever moving to it on account thereof, hence none of any dereliction in its duty affecting the same.

After careful consideration of the record, however, we conclude that the trial court was right, both in so submitting the cause and refusing to set aside the jury's verdict thereon.

In the circumstances shown, the approved rule of law for the determination of when one is an invitee in such situations seems to us to support that action; the court in Moreman Gin Co. v. Brown (Tex. Civ. App.) 291 S. W. 946, 947, thus quotes it from Plummer v. Dill, 156 Mass. 426, 31 N. E. 128, 32 Am. St. Rep. 463:

"It has been well said, however, that no invariable test for the difference of a licensee and a person on premises by invitation can be given in general terms, but the rule laid down by the Supreme Court of Massachusetts in Plummer v. Dill, 156 Mass. 426, 31 N. E. 128, 32 Am. St. Rep. 463, is commended by Elliott in his work on Railroads, § 1249, as well as by others. The rule is thus stated:

"`To come under an implied invitation, as distinguished from a mere license, the visitor must come for a purpose connected with the business in which the occupant is engaged, or which he permits to be carried on there. There must at least be some mutuality of interest in the subject to which the visitor's business relates, although the particular thing which is the object of the visit may not be for the benefit of the occupant.'"

It was therefore not necessary in this instance for appellant to have been directly shown to have contracted for such use of its tracks for a consideration or benefit to it, so, as determinative of whether or not the appellee was either an express or an implied invitee on its premises for the purpose of doing the work he was doing there, in either of which situations the same duty would have been due him from it as if he had been appellant's employee (Armstrong Co. v. Adair, 112 Tex. 439, 247 S. W. 848), the trial court submitted to the jury these special issues:

"Special Issue No. 4.

"Was the steel, which was being handled by the plaintiff, J. P. Rogers, with the crane at the time of the accident, there at the place of the accident under bills of lading in which it was consigned to the Petroleum Iron Works?

"Special Issue No. 5.

"Did such bills of lading contemplate or involve loading by the consignee of the steel out of the team tracks onto trucks as was being done by plaintiff, J. P. Rogers, at the time of the accident?

"Special Issue No. 6.

"Was the plaintiff, J. P. Rogers, where he was at the time of the accident for a purpose connected with the business in which the defendant, Houston Belt & Terminal Railway Company, was engaged or which it permitted to be carried on there?

"Special Issue No. 7.

"Did the defendant, Houston Belt & Terminal Railway Company, permit the use of the crane which was being operated by the plaintiff, J. P. Rogers, at the time of the accident, at the place where the accident occurred, for the purpose in which he was then and there operating it?"

These among other related inquiries—such as concerned the capacity in which the appellee was operating the crane at that place on the team-tracks when injured, the ownership of the tracks and of the steel lying beside them, as well as the presence of the crane itself thereon—all having been answered favorably to the appellee's claims, on what we determine to have been sufficient evidence, his status as at least an implied invitee on the appellant's railway track and in the use of the crane located thereon for the purpose of doing the work he was engaged in when injured became established; indeed, in appellant's brief, after admission that the accident happened to the appellee while operating the crane on tracks belonging to it preparatory to loading steel onto trucks belonging to his employer, the Petroleum Iron Works, this further concession is made:

"The evidence was undisputed that agents and servants of the railway company knew the plaintiff was there, and there is no evidence that they forced him to evacuate the place. Therefore, it may be said that they did `permit' his operations but the word `permit' does not imply a beneficial legal relationship. We may say the same for the answer to special issue No. 7, that the defendant railway company did `permit' the use of the crane there. It is a reasonable inference from the evidence that they knew the crane was there and made no objection to its use."

Its brief is, however, somewhat inept in its recitation that this steam crane was shown to have entirely belonged to others than appellant; the evidence on that feature being in substance that it belonged to the I. & G. N. Railway Company, a mere subsidiary of the St. Louis, Brownsville & Mexico Railway Company, which latter in turn was one of the joint owners of the appellant, and that the I. & G. N. Company had delivered the crane to the appellant for its Texas Avenue yard in the city of Houston. Appellant's vice president testified that the permission to use all cranes operated on any of its tracks would be granted or determined by its superintendent, while its roadmaster and superintendent of terminals, respectively, added that its own engines and employees operating them under orders brought this crane, as they did all others under the long-standing custom, into its yards for such purpose and use on the tracks here involved as it was being put...