Kirby Lumber Co. v. Scurlock

• Court: Texas Court of Appeals
• Writing for the Court: Walker
• Citation: Kirby Lumber Co. v. Scurlock, 229 S.W. 975 (Tex. App. 1921)
• Decision Date: 12 March 1921
• Docket Number: (No. 623.)
• Parties: KIRBY LUMBER CO. v. SCURLOCK et al.

229 S.W. 975

KIRBY LUMBER CO. v. SCURLOCK et al.

(No. 623.)

Court of Civil Appeals of Texas. Beaumont.

March 12, 1921.

Rehearing Denied April 6, 1921.

Appeal from District Court, Newton County; J. T. Adams, Judge.

Action by Mrs. Maggie Scurlock and others against the Kirby Lumber Company. From judgment for plaintiffs, defendant appeals. Affirmed.

Andrews, Streetman, Logue & Mobley, of Houston, for appellant.

Collins & Morris, of Beaumont, for appellees.

WALKER, J.

On the 5th day of March, 1919, one of the log trains of the Kirby Lumber Company ran over and killed J. W. Scurlock. This suit was by his wife and children to recover damages for his death, and resulted in a judgment for $15,000 in their favor. The case was submitted to the jury on special issues as follows:

"Question No. 1: Did the agents and servants of the defendant, Kirby Lumber Company, in charge of the tram train in question, in running the tender in front of the engine of defendant's tram train out on defendant's tram track, on the occasion in question, fail to exercise such care for the safety of J. W. Scurlock as a person of ordinary care would have exercised under the same or similar circumstances?"

To this question the jury answered: "Yes."

"Question No. 2: Did the agents and servants of the defendant, Kirby Lumber Company, in charge of its tram train, on the occasion in question, fail to keep such a lookout for J. W. Scurlock on said tram track as a person of ordinary care would have kept under the same or similar circumstances?"

To this question the jury answered: "Yes."

"Question No. 3: Did the agents and servants of the defendant, Kirby Lumber Company, in charge of said tram train on the occasion in question, fail to use such care to give J. W. Scurlock warning of the approach of the tram train upon him as a person of ordinary care would have used under the same or similar circumstances?"

To this question the jury answered: "Yes."

"Question No. 4: Could the defendant's agents and servants in charge of said tram train, on the occasion in question, by the use of ordinary care have discovered said J. W. Scurlock on the tram track ahead of said tram train in time to have avoided running over him by the use of ordinary care?"

To this question the jury answered: "Yes."

"Question No. 5: If you have answered either or all of the four foregoing questions, `Yes,' then you will answer the following question: Was the failure on the part of the agents and servants of the defendant, Kirby Lumber Company, in charge of said tram train, to use such care as a person of ordinary care would have used in either or all of the particulars inquired about in the four foregoing questions, the proximate cause of the death of J. W. Scurlock?"

To this question the jury answered: "Yes."

"Question No. 6: If you have answered question No. 4, `Yes,' then you will answer the following question: How far from said tram train, in the direction in which it was going on the occasion in question, could the defendant's agents and servants in charge of said tram train, by the use of ordinary care, have discovered said J. W. Scurlock, on said tram track before running over him?"

To this question the jury answered: "450 yards."

"Question No. 7: Did J. W. Scurlock, upon the occasion in question, just prior to his going out on the tramroad on his velocipede, tell Mark Herrin, the engineer of the tram train, that he was going out ahead of the train, and to be on the lookout for him, or words to that effect?"

To this question the jury answered: "Yes."

"Question No. 8: Did J. W. Scurlock, in going out on his velocipede over the tram track in question, ahead of the tram train, instead of waiting and following the tram train out, exercise such care for his own safety as a person of ordinary care would have exercised under the same or similar circumstances?"

To this question the jury answered: "Yes."

"Question No. 9: Did J. W. Scurlock exercise ordinary care for his own safety to keep himself informed of the movement of the tram train in question and to avoid being run over thereby?"

To this question the jury answered: "Yes."

"Question No. 10: Did J. W. Scurlock, upon the occasion in question, keep such a lookout for the approach of the tram train as a person of ordinary care would have kept under the same or similar circumstances?"

To this question the jury answered: "No."

"Question No. 11: If you have answered either one or all of questions 8, 9, and 10, `No,' then you will answer the following question: Was the failure on the part of J. W. Scurlock to use ordinary care for his own safety in either or all of the particulars inquired about in questions 8, 9, and 10 the proximate cause of the death of J. W. Scurlock?"

To this question the jury answered: "No."

Appellant asked for an instructed verdict on three grounds: (1) Plaintiff's remedy was under the Workmen's Compensation Act; (2) Scurlock was guilty of contributory negligence proximately causing his death; and (3) if Scurlock was a licensee, defendant was guilty of no negligence toward him. We will discuss these in the order named.

1. Scurlock was employed by the defendant at the time of his death as a sizer at its sawmill at Call, Tex., and had been so employed for five or six years. This Call mill was a large plant, and defendant owned all the property around the mill. It was logged over a tramroad, extending from the mill quite a long distance to the timber. Scurlock lived about three miles from the mill near this tramroad, which he used most all the time in riding his velocipede to and from his work. Occasionally he rode to his work in a Ford car, but when he did not use his car he always rode his velocipede, using the tramroad. McMahon, a witness for plaintiffs, and a nephew of deceased, testified as follows, as to Scurlock's use of the velocipede and tramroad:

"Mr. Scurlock used this tram track there in order to come from his home to his work, and he would go back from his work to his home in it every day. That was the easiest way and quickest way of getting in to the mill every morning from his home on this velocipede over the tram track. It was a surer way of getting to the mill. It didn't make any difference about what kind of weather it was; with a velocipede, a man could certainly get to his work on time. It facilitated his work for him to be permitted to come in to his work on the velocipede, and it facilitated his returning from his work home. That was true when my father and I were using the tram track with the velocipede. We could get to our work more easily and more quickly and more expeditiously by using the velocipede on the tram track than otherwise."

No one used this track, as did Scurlock, except employés of the company. On the day of the accident, Scurlock rode from his home to the mill on his velocipede; but, as the mill was idle that day, he did no work for the company. He worked a little on his sizer, and spent the balance of the morning in the shop, working on his velocipede. About noon he left the mill for home, riding his velocipede on the tramroad. The log train left the mill 20 or 30 minutes later, and ran over and killed Scurlock about a mile and a half from the mill. The defendant was a subscriber under the Workmen's Compensation Act (Vernon's Sayles' Ann. Civ. St. 1914, arts. 5246h-5246zzzz), with Lumbermen's Reciprocal Association. Shortly after the death of her husband, Mrs. Scurlock filed a claim under the Workmen's Compensation Law with the Industrial Accident Board. The insurer did not contest the claim, but Mrs. Scurlock dismissed it before an order was entered by the Board in her favor. After the claim was dismissed, the insurer tendered checks to Mrs. Scurlock in the proper amounts under the Workmen's Compensation Law. We think this case is controlled by American Indemnity Co. v. Dinkins, 211 S. W. 951, an opinion by this court, in which writ of error was denied by the Supreme Court. While the facts are somewhat different in this case, yet we think the underlying principles are the same. Appellant would distinguish this case from the Dinkins Case on the fact that Scurlock was killed on property owned by his employer, by an instrumentality of the employer, which it used in the conduct of its business, and further by the fact that it was advantageous to Scurlock to use this track in going to his work and also of advantage to the employer in having a sure, safe road for Scurlock to reach his work. We do not think these facts distinguish this case in principle.

Erickson v. St. Paul City Railway Co., 141 Minn. 166, 169 N. W. 532, is a case where an employé riding home in his employer's truck, used not as a part of the contract of employment, but only occasionally, was struck by a street car and injured. Judge Taylor, speaking for the Supreme Court of Minnesota, said:

"It is clear from these provisions that workmen who have completed their day's work and have left the premises where they were employed and are not engaged in performing any service of their employment are not covered by the Compensation Law until they again enter upon the performance of the service for which they are employed. In the case at bar it will be noted that the accident happened after the employés had completed their day's work and had left their place of employment and while they were proceeding toward their respective homes. Although they were riding on the truck of their employer, it clearly appears that their contract of employment imposed no obligations upon the employer to transport them to or from the place of work, and that they were merely riding as licensees to serve their own convenience. Their service for the day had terminated; they had left the place where such service had been performed and were no longer engaged in performing any service for their employer. Under such circumstances they were not within the provisions of the...