Missouri-K.-T. R. Co. v. Evans

• Decision Date: 05 October 1951
• Docket Number: No. 15262,MISSOURI-KANSAS-TEXAS,15262
• Citation: 243 S.W.2d 181
• Parties: R. CO. v. EVANS.
• Court: Texas Court of Appeals

Page 181

243 S.W.2d 181

MISSOURI-KANSAS-TEXAS R. CO. v. EVANS.

No. 15262.

Court of Civil Appeals of Texas, Fort Worth.

Oct. 5, 1951.

Supplemental Opinion Oct. 19, 1951.

Rehearing Denied Nov. 2, 1951.

G. H. Penland, of Dallas, Freels & Elliott, of Sherman, and Nelson, Montgomery & Robertson, of Wichita Falls, for appellant.

Allen, Locke & Crampton, and Peery & Kouri, all of Wichita Falls, for appellee.

CULVER, Justice.

This is a suit to recover for injuries claimed to have been sustained by the appellee while in the employ of the appellant railroad company and is brought under the Federal Employers' Liability Act, 45 U.S.C.A. § 51 et seq. The court denied defendant's motion for an instructed verdict and submitted the case on special issues which were answered favorably to the appellee. Appellant's motion for judgment non obstante veredicto having been overruled, the court entered judgment in favor of appellee.

Appellee was employed by appellant as a brakeman and on November 24, 1949, was a member of a crew operating a freight train proceeding from Altus, Oklahoma to Wichita Falls, Texas. While enroute an airhose burst, causing the brakes to 'set', thus stopping the train. Appellee and another brakeman attempted with a wrench to disconnect the ruptured hose and replace it with a new one. The wrench would not turn the hose or its connection, and plaintiff then got under the coupling apparatus and beat upon the connection with a hammer in an effort to loosen it. While so doing, he claims to have gotten rust and dirt in his left eye. Plaintiff testifies that he then went to the engine and the other brakeman finished the job. His eye began to give him considerable pain and upon arrival at Wichita Falls, early in the afternoon, he called the doctor's office, but got no response. At home, his wife removed some rust and dirt from his eye. On the following day, he visited the offices of the doctors employed by the railway organization for treatment and in a day or so was admitted to the hospital. He was later referred by these doctors to Dr. Mansur, an eye specialist, who made an examination on December 6th and operated on the eye on the following day. The appellee maintains that the particles of rust produced total loss of vision in the left eye.

The jury found that the railroad company, (a) permitted rust to collect upon the airhose connection; (b) failed to inspect the airhose and its connection; (c) failed to inspect properly the power brake system; (d) permitted the hose to remain on its car while said hose was worn out; (e) maintained the airhose and connection in a negligent manner, and that all of the foregoing acts constituted negligence and were proximate causes of the injury appellee received to his eye. In addition, appellee was absolved from any acts of contributory negligence. The damages were assessed in the sum of $40,000.

Appellant's first contention is that it was entitled to an instructed verdict for the reason that it was appellee's duty to inspect and repair the defective airhose and consequently the appellant was not negligent therefor under any provisions of the Safety Appliance Acts. 45 U.S.C.A. §§ 1-16. It is well settled that under the Federal Employers' Liability Act, the decisions of the Federal Courts are controlling. Bailey v. Central Vermont Railway, 319 U.S. 350, 63 S.Ct. 1062, 87 L.Ed. 1444; Griswold v. Gardner, 7 Cir., 155 F.2d 333.

In the case of Minneapolis, St. Paul & S. S. M. Ry. Co. v. Goneau, 269 U.S. 406, 46 S.Ct. 129, 131, 70 L.Ed. 335, the facts are quite similar to those under consideration. In that case the brakeman, while attempting to recouple the cars which had parted on account of the defective coupling, lost his balance and fell from the trestle. The railway company attempted to show that the evidence did not warrant the application of the terms of the Safety Appliance Acts, contending that the defective car was motionless and not then in use and that Goneau was not engaged in any coupling operation, but was doing repair work at the place where the defect was first discovered, which risk he assumed. The court overruled this contention, holding that Goneau was not a repairman, but a brakeman. 'In short, he was engaged in the work of coupling cars, * * * and is within the protection of the Safety Appliance Act.' We are of the opinion, in view of the above holding by the United States Supreme Court, that the distinction attempted to be drawn by appellant between the instant case and the above cited case is untenable. See also Carter v. Atlanta & Saint Andrews Bay Railway Company, 338 U.S. 430, 70 S.Ct. 226, 94 L.Ed. 236.

The appellant asserts that the evidence was insufficient 'to show that the substance, if any, which got into plaintiff's eye was rust as distinguished from dirt or other foreign substances.' Plaintiff testified that the connection was rusty and that the particles fell in his eye while he was hammering on it. The plaintiff's wife testified that she got rust and dirt out of his eye though she had no way to analyze it and tell exactly what it was. We are of the opinion that the evidence was sufficient to support the jury's finding on this issue. Such has been the trend of the decisions of the Supreme Court in cases of this character that the writer of the majority opinion in Griswold v. Gardner, supra (155 F.2d 334), is led to observe 'the fact is, so we think, that the Supreme Court has in effect converted this negligence statute into a compensation law thereby making, for all practical purposes, a railroad an insurer of its employees,' and refers to the dissent of Mr. Justice Roberts in Bailey v. Central Vermont Ry., supra. He further says, 'The Supreme Court, commencing with Tiller v. Atlantic Coastline R. Co., 318 U.S. 54, 63 S.Ct. 444, 87 L.Ed. 610, 143 A.L.R. 967, in a succession of cases has reversed every court with one exception, (hereinafter noted) which has held that a defendant was entitled to a directed verdict.' The exception is Brady v. Southern Railway, 320 U.S. 476, 64 S.Ct. 232, 88 L.Ed. 239, a five to four decision. The point is overruled.

Points 9, 10, 12, 13, 14 and 15 are based on alleged errors in the court's charge. We have examined each of these points as briefed and are of the opinion that they are without merit for the reasons that the errors were either harmless or were not called to the attention of the court with the conciseness required by the rule. 'A party objecting to a charge must point out distinctly the matter to which he objects and the grounds of his objection.' Rule 274 Texas Rules of Civil Procedure. In special instruction No. 7, the court in defining the term 'new' inadvertently used the word 'case' instead of 'cause' which surely would have been corrected if the court's attention had been with particularity drawn to the inadvertence. Appellant points out that special issue No. 4 was duplicitous and that the court erred in submitting it to the jury over the objection of the appellant. We find no such objection in the exceptions taken to the charge.

The appellant objected to special issue No. s0 which read, 'Do you find from a preponderance of the evidence that the bursting of the airhose was a contributing proximate cause of the injury to the plaintiff.' We are of the opinion that the issue was not an ultimate issue to be submitted to the jury. The issue was one of law and not of fact. The injury done to appellee was not occasioned by the bursting of the hose, but by reason of his attempting to remove and replace the defective hose. The submission of this issue, in our opinion, would be harmless error. Appellant objected to issue No. 16, reading, 'Do you find from a preponderance of the evidence that the defendant Missouri-Kansas-Texas Railway Company...