Messer v. LB Foster Company

• Decision Date: 17 April 1958
• Docket Number: No. 16907.,16907.
• Citation: 254 F.2d 412
• Parties: E. C. MESSER and Texas Employers' Insurance Association, Appellants, v. L. B. FOSTER COMPANY, Inc., et al., Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

254 F.2d 412 (1958)

E. C. MESSER and Texas Employers' Insurance Association, Appellants, v. L. B. FOSTER COMPANY, Inc., et al., Appellees.

No. 16907.

United States Court of Appeals Fifth Circuit.

April 17, 1958.

Edward L. Poole, Merchant & Fitzjarrald, Amarillo, Tex., for appellant, E. C. Messer.

R. A. Wilson, Underwood, Wilson, Sutton, Heare & Boyce, Amarillo, Tex., for appellant Texas Employers' Ins. Ass'n.

S. Thomas Morris, Gibson, Ochsner, Harlan, Kinney & Morris, Amarillo, Tex., for appellee.

Before HUTCHESON, Chief Judge, and BROWN and WISDOM, Circuit Judges.

JOHN R. BROWN, Circuit Judge.

This appeal from a judgment on a general verdict for the defendant presents the narrow question whether the Court erred in not giving an explanatory instruction on concurrent negligence of the defendant's servant and the co-employee of the plaintiff. The case is the now familiar one in which the plaintiff (Messer) injured while in the course of employment for his employer (Jones) sues a so-called third party (Foster) for the negligence of his (Foster's) servants.

For our purposes, even indulging the inferences most favorably to the plaintiff, the setting can be briefly summarized. Messer worked for Jones, a water-well drilling contractor. Jones purchased two truck-loads of 16-inch steel well casing from Foster in Houston, Texas. Under the sales contract, Foster was to deliver it to Jones' yard at Dumas, Texas. When the two trucks arrived at Jones' yard, Messer or some other employee of Jones determined which unloading-storage rack was to be used and Foster's trucks were spotted accordingly by the respective drivers, Baker and Jaegar.

The storage rack was a substantial, permanent structure comprising two parallel railroad rails spaced about twenty feet apart and fastened securely to concrete piers. The height of the rails above the ground was about three feet. Pipe being unloaded was rolled back on these rails. Foster's loaded truck-trailer was spotted immediately next to the end of the storage rack rails. Messer and his fellow employee, McVicker, then spotted the Jones flatbed truck so that it was perpendicular to the other side of the loaded Foster truck with a space of two to six feet between its rear end and the side of the loaded truck. The Jones truck was equipped with a permanent A-frame and power winch. With the Jones truck in this position, the A-frame extended over and above the loaded pipe on the Foster truck and its apex was above and over the near end of the storage rack rails. By a bridle-like arrangement, either fastened to or a part of the cargo fall on the winch drum, there were two hooks, one to be hooked into each end of the piece of pipe being unloaded. Tag lines were attached to each of the hooks which enabled the two men "hooking on" conveniently to pull the hooks back to the truck bed for the next operation. The truck bed was approximately four and one-half feet above the ground. Thus, in unloading a joint of this 40-foot pipe, it was moved horizontally from its position on the truck bed to a point below the A-frame apex and simultaneously in a vertical upward direction over the edge of the trailer bed and thence downward until it rested on the storage rack rails. This was, of course, a more or less continuous operation from the moment the hoisting began until the joint rested on the rails. In addition to hoisting and lowering away by the power winch, the Jones truck was occasionally moved a few feet forward or backward depending, apparently, on the position of the particular joint on the truck bed.

In this operation, McVicker, the fellow employee, was handling the Jones winch truck. He had to look out through the rear window in the cab of that truck. With the load of pipe on the Foster truck between him and the storage rack, he could not see Messer and had to depend on a hand signal from one of the men hooking on before hoisting a joint of pipe. Messer, the plaintiff, was on the ground at the storage rack. He would stand clear to one side while a joint was being unloaded onto the rails. Once it was on the rails, he would remove the hooks and then, in a position between the rails, roll the joint to the rear of the rack. Foster's two truck drivers, Baker and Jaegar, were the hook-on men and Baker was the one giving the hand signals to McVicker in the winch truck. Baker in turn was to get a signal from Messer when it was in order to hoist the next joint off the truck.

All went well until they handled the last joint out of a cargo of approximately twenty pieces of pipe. Messer was between the storage rack rails with his back to the Foster truck. Baker, without looking to see whether Messer was clear, gave a signal to McVicker to hoist the last joint. McVicker hoisted away, and, apparently simultaneously the truck accidentally rolled back about two to four feet. This caused the joint of pipe to whip and swing wildly with one end lower and the other higher. Messer, then between the loading rack rails at a point approximately twelve feet from the side of the Foster truck, was struck by this pipe near his waist producing extensive injuries.

This brings us to Messer's complaint. Messer, accepting otherwise the Court's general charge, specifically requested the submission of a proposed charge and excepted to the failure of the charge generally to submit clear instructions on the effect of concurrent negligence of McVicker and Baker. While the written requested charge may have been technically imperfect, we think the exception adequately directed the Court's attention to the matter and we therefore assume that...