Marathon Oil Co. v. Sterner
| Decision Date | 21 May 1981 |
| Docket Number | No. 17926,17926 |
| Citation | 624 S.W.2d 198 |
| Parties | MARATHON OIL COMPANY, Appellant, v. James E. STERNER, Appellee. (1st Dist.) |
| Court | Texas Court of Appeals |
Mills, Shirley, McMicken & Eckel, Ross Citti, Galveston, for appellant.
Brown & Todd, Gordon Davenport, Alvin, for appellee.
Before COLEMAN, C. J., and WARREN and PEDEN, JJ.
Marathon Oil Company appeals from a judgment based on jury findings awarding James E. Sterner $25,000 for personal injuries arising out of an accident on Marathon's premises. Mr. Sterner, a boilermaker employed by an independent contractor, alleged that he was overcome by gas while working in a large metal vessel in a unit of Marathon's plant.
In response to four special issues the jury found that 1) Sterner sustained an injury on November 15, 1975, on Marathon's premises, 2) the escape of gas or gasses was due to the negligence of Marathon, 3) such negligence was a proximate cause of Sterner's injuries, and 4) $25,000 would fairly and reasonably compensate him.
Marathon asserts that there is no evidence that it was negligent in any manner proximately causing the injury and that the trial court erred in instructing the jury on the elements of res ipsa loquitur. Based on these assertions of no evidence, Marathon contends that the trial court erred in submitting its second, third, and fourth special issues and this instruction on res ipsa loquitur :
You are instructed that you may infer negligence by a party but are not compelled to do so, if you find that the character of the accident is such that it would ordinarily not happen in the absence of negligence and if you find that the instrumentality causing the accident was under the management and control of the party at the time the negligence, if any, causing the accident probably occurred.
This is the instruction suggested in Justice Sears McGee's authoritative opinion on the application of the doctrine of res ipsa loquitur in Texas, Mobil Chemical Company v. Bell, 517 S.W.2d 245, at 257 (Tex.1974). Marathon did not object at the trial to the inclusion of this instruction in the court's charge, and it does not attack the first jury finding: that Sterner sustained an injury while on Marathon's premises on November 15, 1975.
Marathon's third point of error presents the real question in this case. It asserts:
There is no evidence that the instrumentality in question (Marathon's vessel) was under the management and control of Marathon at the time of plaintiff's alleged accident and injuries or that the character of the accident and the circumstances attending it were such that the accident would not have occurred absent Marathon's negligence so that the trial court erred in submitting this case to the jury on the theory of res ipsa loquitur.
Mobil Chemical v. Bell, supra, included these statements:
(I)n any res ipsa case, the particular facts surrounding the event are extremely important.
The res ipsa doctrine is applicable when two factors are present: (1) the character of the accident is such that it would not ordinarily occur in the absence of negligence; and (2) the instrumentality causing the injury is shown to have been under the management and control of the defendant.... The first factor is necessary to support the inference of negligence and the second factor is necessary to support the inference that the defendant was the negligent party.... As such the "control" requirement is not a rigid rule that the instrumentality must have always been in the defendant's possession or even that it must have been in the defendant's control at the time of the injury.... It is sufficient if the defendant was in control at the time that the negligence inferable from the first factor probably occurred, so that the reasonable probabilities point to the defendant and support a reasonable inference that he was the negligent party.... The possibility of other causes does not have to be completely eliminated, but their likelihood must be so reduced that the jury can reasonably find by a preponderance of the evidence that the negligence, if any, lies at the defendant's door....
In Texas it is well settled that res ipsa loquitur is simply a rule of evidence whereby negligence may be inferred upon proof of the factors stated above....
....
(T)he effect of successfully invoking the res ipsa doctrine is that the plaintiff can survive no-evidence procedural challenges-he has produced some evidence of the defendant's negligence. He is in the same position as any other plaintiff who has made out a case for the jury. No presumption of the defendant's negligence arises; the jury is merely free to infer negligence.... The plaintiff continues to have the burden of persuading the jury by a preponderance of all the evidence that the defendant was negligent....
In order to rely on the res ipsa doctrine, the plaintiff must produce evidence from which the jury can conclude, by a preponderance of the evidence, that both the "type of accident" and "control" factors are present. This is not so much a rule of law as it is a rule of logic-unless these factors are present, the jury cannot reasonably infer from the circumstances of the accident that the defendant was negligent. In a great many cases the plaintiff can rely upon general knowledge to prove the accident in question is the type of accident which does not ordinarily happen in the absence of negligence.... The plaintiff must also prove that the instrumentality was under the management and control of the defendant.... As previously discussed, this requirement must be interpreted in the factual setting of each case. Disputes may arise as to what instrumentality caused the injury, when the negligence, if any, occurred, and who was in control at that time. In any event, the plaintiff must produce evidence from which the jury can reasonably conclude that the negligence, if any, is attributable to the defendant.
....
While the plaintiff must produce evidence enabling the jury to reasonably conclude that the two required factors are present, this does not mean that issues inquiring about these factors must or should be submitted. The pertinent question for the jury's determination is whether the defendant was negligent.... The "type of accident" and "control" factors are just subissues of this ultimate issue.... If the trial court is satisfied that there is probative evidence of both factors, he should ask the jury whether the defendant was negligent. A finding of negligence necessarily includes findings that the accident would not ordinarily occur in the absence of negligence and that the defendant was in control of the instrumentality at the appropriate time.... (citations omitted throughout).
In reviewing no evidence points we view the record in the light most favorable to the judgment, considering only the evidence and reasonable inferences which tend to support the judgment and disregarding all evidence and inferences which would tend to vitiate it.
In our case the plaintiff pleaded both res ipsa and a specific act of negligence.
It was undisputed that the vessel in question was located on Marathon's premises and that the accident occurred during a "turnaround" operation, at which time a plant shuts down one of its units for repair or maintenance work. Plant owners usually take bids from contractors for such jobs, since the plants ordinarily have insufficient manpower to conduct them. Mr. Sterner was in the employ of an...
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Marathon Oil Co. v. Sterner
...jury found for Sterner on four special issues 1, and the trial court rendered judgment for Sterner. The court of civil appeals affirmed. 624 S.W.2d 198. We reverse the judgment of the courts below and render judgment that Sterner take Sterner brought suit against Marathon alleging specific ......