Missouri-Kansas-Texas R. Co. of Texas v. Waddles

• Citation: 203 S.W.2d 350
• Decision Date: 05 May 1947
• Docket Number: No. 5773.,5773.
• Parties: MISSOURI-KANSAS-TEXAS R. CO. OF TEXAS v. WADDLES.
• Court: Court of Appeals of Texas

203 S.W.2d 350

MISSOURI-KANSAS-TEXAS R. CO. OF TEXAS v. WADDLES.

No. 5773.

Court of Civil Appeals of Texas. Amarillo.

May 5, 1947.

Rehearing Denied June 9, 1947.

Appeal from District Court, Grayson County; R. C. Slagle, Jr., Judge.

Suit under the Federal Employers Liability Act by Oscar Waddles against the Missouri-Kansas-Texas Railroad Company of Texas to recover for injuries sustained by plaintiff when he was gored by a yearling while he was a stockyard employee of the defendant. From a judgment in favor of plaintiff, the defendant appeals.

Judgment affirmed.

Gullett & Gullett, of Denison, and Freeman, Wolfe & Keith, of Sherman, for appellant.

Webb, Elliott & Rogers, of Sherman, for appellee.

PITTS, Chief Justice.

Appellee, Oscar Waddles, filed this suit under the provisions of the Federal Employers' Liability Act, 45 U.S.C.A. § 51 et seq., on March 2, 1942, against appellant, Missouri-Kansas-Texas Railroad Company of Texas, for damages alleged to have resulted from personal injuries inflicted upon him when a large, vicious yearling attacked him as a result of various alleged acts of negligence of appellant. Appellant answered by general denial, that any injury received by appellee was due to his own negligence or due to an unavoidable accident and that any disability he may have had resulted from a previous disease he had suffered. The cause was tried to a jury and submitted on special issues. The jury found that appellee's injuries were not the result of an unavoidable accident nor as a result of his own negligence but that such injuries and damages resulted from and were proximately caused by various acts of negligence of the agents of appellant for which the jury awarded damages to appellee in the sum of $4,000. The trial court rendered judgment accordingly from which an appeal was perfected to the Court of Civil Appeals of the Fifth Supreme Judicial District and transferred to this Court by the Supreme Court.

The record reveals that appellee is a colored man who had been an employee of appellant for more than twenty years; that on September 8, 1941, he was a stockyard employee of appellant at the Ray Terminal west of Denison, Texas; that his duties were to assist, under the direction of a foreman, in removing cattle that were in transit by rail from the stock cars into appellant's pens for a rest period, after which they were reloaded on the stock cars. The cattle were unloaded from the car on a platform adjacent to a chute about seventy feet long, which chute leads to an alley which alley is twelve feet wide and some two hundred feet long. The sides of the alley are built out of lumber two inches by six inches nailed to posts. The sides or fences composing the sides of the alley were seven feet high with open spaces or cracks between the planks that composed it. There were several stock pens about thirty-five feet by thirty-six feet on each side of the alley and adjacent thereto. The cattle were moved through the chute into the alley and from there into one of the pens adjacent to the alley for the rest period, at the end of which period they were moved back through the alley into the chute across the platform and into the stock car. There was a gate where the chute intersected the alley that may close the entrance into the chute or open back and close or block the alley so as to help turn the cattle into the chute. There was also a cutoff gate about the middle of the chute and a double gate at the top of the chute adjacent to the loading platform. It was the custom to close the cutoff gate in the middle of the chute after the cattle had passed through it to prevent them from turning back. The double gate opened back from the top of the chute itself so as to make a passageway across the platform into the stock car.

The record shows that at the particular time in question the rest period of the cattle in the pen was over and that they were being returned to the stock cars. Appellee, under the direction of the foreman in charge, had driven the cattle out of the pen into the alley and had driven them along the alley into the chute and from there they were being loaded into the stock car, when a large yearling turned back from the herd, ran out of the chute, down the alley and attacked appellee in the alley before he could climb the fence. The yearling gored appellee against the fence with its head and injured him. The record also reveals that during the process of moving the cattle back to the stock car the foreman in charge, H. R. Calvird, and another employee, Rob Roberts, were somewhere about the chute and that they were called "chute men" while appellee was called an "alley man".

The jury found that all of the cattle had not proceeded beyond the cutoff gate in the middle of the chute "on the occasion in question and prior to the time" appellee was struck but we have no way of determining from the record how long a period of time "prior to the time" appellee was struck that the jury found such condition existed. However, such issue does not appear to be material since the jury further found that "on the occasion in question" appellant's employees failed to close the cutoff gate and that such failure was negligence which negligence was a proximate cause of appellee's injuries. The jury also found that on occasions such as this it was customary for the "chute man" to warn the "alley man" when a yearling cut back from the herd and charged down the alley; that on the occasion in question the yearling in question did cut back from the herd and charge down the alley; that appellant's foreman, Calvird, was following the yearling and therefore knew the said yearling cut back from the herd and was charging down the alley but he failed to so warn appellee; that such failure of Calvird to warn appellee was negligence, which negligence was a proximate cause of appellee's injuries. The jury further found that since appellant's foreman, Calvird, followed the said yearling as it charged down the alley he actually saw and discovered appellee's perilous position in time to have averted the injury to him by the use of all means at his command commensurate with his own safety but that the said Calvird failed to use such means to avoid the injury; that such failure on the part of Calvird was negligence which negligence was a proximate cause of appellee's injury. The jury exonerated appellee from any contributory negligence and found that appellant's negligence was 100 per centum responsible for appellee's injuries.

Appellant groups and presents several points of error together complaining that the trial court erred in overruling its motion for an instructed verdict as well as its motion for judgment upon the jury's verdict and the motion for judgment non obstante veredicto and that the court erred in permitting appellee to recover without evidence to establish the fact that the negligence of appellant was the proximate cause of appellee's injuries.

Appellee testified that after he had driven the cattle out of the pen through the alley and into the chute he heard Mr. Calvird holler "Rob, keep them in" and he knew something had gone wrong at the top of the chute where the cattle were being loaded into the stock car and he thought a yearling had slipped and fallen out on the ground between the car and the platform as they had often done before when being reloaded. He testified that he was half walking and half running along the alley not far from the mouth of the chute looking through the cracks between the boards that build the alley fence or side to see if a yearling was not out; if he so found he would have climbed over the fence and have driven the yearling into a pen or the alley and up the chute again for reloading as he often had done previously when one fell to the ground between the platform and the car when they were being reloaded. He further testified that while he was trotting along looking through the fence to see if one had fallen out, suddenly he saw the yearling in the alley charging toward him about twenty-five feet away with Mr. Calvird chasing the yearling and only about eighteen feet behind it; that he tried to escape by climbing the fence but the yearling caught him, gored him against the fence with its head, and injured him before he could get away. He also testified that it was customary under such circumstances for the chute men to warn the alley man of such danger when a yearling cut back from the herd and charged down the alley but that on this occasion neither Mr. Calvird, Rob Roberts, nor anybody else warned him of the approaching danger as had been their custom previously under such circumstances. Both Mr. Calvird and Rob Roberts, the foreman and another employee of appellant, testified for appellant and they both testified on cross-examination that the alley man was in danger when one or more of the cattle turn back from the herd and run down the alley and for that reason it was their custom to "hollo" and warn the alley man of the approaching danger. Obviously there were issues of fact to be submitted to the jury as well as sufficient evidence of probative force to support the jury's findings that the negligence of appellant's employees was the proximate cause of appellee's injuries. Appellant's points of error to the contrary must therefore be overruled.

Appellant groups several points of error complaining that the trial court erred in submitting over its objections Special Issue Number 10 because "there was evidence to sustain such issue". Evidently it meant to charge that the court erred because there was no evidence to sustain such issue and we shall so treat such complaint. It further complains that the court erred in submitting Special Issue Number 11 because "there was no evidence to sustain such issue". Appellant further complains that the trial court erred in submitting Special Issue Number 12 "for the reason that such negligence as was found in Special Issue...