J. W. Zempter Const. Co. v. Rodgers, 3711.

• Decision Date: 13 January 1932
• Docket Number: No. 3711.,3711.
• Citation: 45 S.W.2d 763
• Parties: J. W. ZEMPTER CONST. CO., Inc., v. RODGERS.
• Court: Texas Court of Appeals

45 S.W.2d 763

J. W. ZEMPTER CONST. CO., Inc., v. RODGERS.

No. 3711.

Court of Civil Appeals of Texas. Amarillo.

January 13, 1932.

Appeal from Lubbock County Court; E. L. Pitts, Judge.

Action by W. A. Rodgers against the J. W. Zempter Construction Company, Incorporated, and another. From judgment rendered, named defendant appeals.

Reversed and remanded.

Monning & Akin, of Amarillo, for appellant.

Vickers & Campbell, of Lubbock, for appellee.

HALL, C. J.

Rodgers sued the appellant Zempter Company and the Panhandle & Santa Fé Railway Company, to recover $600 damages to his Chevrolet truck, which he alleges collided with a passenger train. That the collision was proximately caused by the negligence of the Zempter Company in not maintaining a flagman at the crossing to advise appellee and other truckmen of the approach of fast-moving passenger trains. That his damages were also proximately caused by the negligence of the railway company in approaching the crossing without having its train under control and at a rate of speed exceeding sixty miles per hour and in failing to blow the whistle and ring the bell, and further in failing to slow down the train upon discovering appellee's perilous situation.

It appears that the Zempter Company, as contractor, was paving state highway No. 7 between Lubbock and Slaton. That said highway runs parallel with and on the south side of the line of railway between said stations. That in doing said paving Burrus Switch on the railway was the appellant's base of supplies, consisting of sand, gravel, and cement delivered by the railway company at that point. It appears that the Zempter Company had about 100 men assisting it in doing the paving. That sand and gravel were unloaded from the railway cars standing on a switch into a hopper on the right of way, and that the cement used in paving was left in the cars standing on the switch track. That the cement mixer was moved along the highway as the work progressed. That the Zempter Company had a loading cane at the hopper and had constructed a roadway over the railroad tracks for use by appellee and other truck drivers engaged in hauling material from the switch track to where the paving was being done upon the highway. That the Zempter Company had employees working at the hopper loading sand and gravel into the several trucks, and its employees also loaded cement from the cars into the trucks with sand and gravel. That it had employees keeping the road in repair for the use of the truckmen and had had a flagman to warn truckmen of the approach of trains. That such flagman had been kept by the Zempter Company at the Posey Switch, a previous base of supplies, but for some reason was not on the job at the Burrus Switch at the time of the accident. That in hauling supplies from the switch track for use in paving the highway, it was necessary for truckmen to drive across the railroad track at the switch.

The Zempter Company alleged that appellee was not one of its servants, but was an independent contractor. That it furnished a safe place for him to work, that appellee was guilty of contributory negligence proximately causing the collision, and that plaintiff had assumed the risk incident to such employment.

The railway company also alleged contributory negligence on the part of appellee and, by way of cross-action, interpleaded the Connell Chevrolet Company, alleging that it was claiming some sort of a lien upon or right, title, and interest in and to the damaged truck.

The Connell Company, by cross-action, set up that it had a valid subsisting chattel mortgage on the damaged truck to secure the unpaid balance of the purchase money amounting to $379.07, evidenced by a note executed in its favor by appellee.

At the time of the accident, the appellee's truck was loaded with sand and gravel from the hopper and with several sacks of cement, and was crossing the railroad track onto the highway when the rapidly approaching train collided with his truck, causing the alleged damages.

In response to the special issues, the jury found: (1) That in the exercise of ordinary care the agents of the Zempter Company should have kept a flagman at the crossing to warn appellee and other truckmen of the approach of trains on the occasion of the collision; (2) that the failure to keep a flagman at that time was a proximate cause of the collision; (3) that the employees of the railway company were not negligent in approaching the crossing at the rate of speed testified to by the witnesses; (5) that $400, if paid now, will compensate the appellee for, the damages sustained; (6) that appellee was not guilty of any negligence in attempting to drive his truck onto and across the railroad track at the time of the accident; and (7) that he exercised ordinary care to discover the approach of the passenger train and avoid the collision.

Judgment was entered discharging the railway company and against the Zempter Company in the sum of $400, and it appearing that the Connell Company had been paid in full before the judgment was entered, its action was dismissed.

It is first contended by the appellant that the court should have directed a verdict in its favor because the uncontroverted evidence showed as a matter of law that Rodgers was an independent contractor and not a servant of appellant, and that therefore appellant owed him no duty to furnish a safe place in which to work.

The pleadings are sufficient to raise the issue of the relation existing between Rodgers and the Zempter Company.

Rodgers testified that he commenced to work for the Zempter Company May 15, 1930, at Slaton, where the company commenced to pave highway No. 7 toward Lubbock. That his work consisted in hauling sand, gravel, and cement. He explained that this material was shipped over the railway and unloaded at the base of supplies into a hopper, in which was placed certain amounts of sand, gravel, and cement. That he furnished his own truck and was paid 25 cents for hauling each load the first quarter of a mile, and a stipulated price for each additional quarter of a mile in going from the base of supplies to where the paving was being done. That there were other truckmen doing similar work. That the distance which he had to travel in order to get the material from the cars to the place where the work was being done upon the highway varied. That on the day of the accident the crane where the sand and gravel were loaded was about 1,500 feet west of the private crossing. That the sand was loaded onto the truck with a scale hopper which weighed the material; then six sacks of cement were placed on top of that load. From there the truckmen drove across the railway track to the highway, where they were directed to unload it. That on the day of the accident there were about eighteen truckmen engaged in hauling material. That the Zempter Company gave each truckman a ticket for each load and the tickets were turned in every afternoon when they quit hauling. That they were not required to haul any certain number of loads, as that was up to the truckmen. That they had definite hours and were supposed to work ten hours. That after working eight hours if they had private business they could ordinarily quit and attend to other business. He further testified that he furnished gasoline, oil, tires, etc., for his own truck. That the truckmen were not instructed how fast to go, but were...