Missouri Pac. R. Co. v. Sparks

Citation424 S.W.2d 12
Decision Date20 December 1967
Docket NumberNo. 45,45
PartiesMISSOURI PACIFIC RAILROAD COMPANY, Appellant, v. Jake L. SPARKS, Appellee. . Houston (14th Dist.)
CourtCourt of Appeals of Texas. Court of Civil Appeals of Texas

Thomas S. Terrell, Gordon A. Holloway, Harman Parrott, Sewell, Junell & Riggs, Houston, for appellant.

W. W. Kilgarlin, Phelps, Kilgarlin & Snell, Houston, for appellee.

BARRON, Justice.

This suit was brought by Jake L. Sparks against defendants, Missouri Pacific Railroad Company and Railway Express Agency, Inc., under the Federal Employers' Liability Act, 45 U.S.C.A., Sections 51--59. Sparks alleged that he was injured on January 25, 1963 while working in a railroad car of a Missouri Pacific train. Defendant, Railway Express Agency, Inc., (hereinafter called REA) received an instructed verdict on the ground that it was protected from the suit herein by workmen's compensation coverage. The case was submitted to the jury under the allegations that Jake Sparks was an employee of the Missouri Pacific at the time in question, and thus came under F.E.L.A. The jury answered every liability issue in favor of the appellee-plaintiff, Sparks. In answer to the damage issue, the jury stated, '20,000.00 as suit demands.' The trial court entered judgment on the jury's verdict against Missouri Pacific in the amount of $20,000.00, overruled Missouri Pacific's amended motion for new trial, and Missouri Pacific has appealed to this Court. Appellant attacks the judgment of the trial court by 31 points of error, grouped and collected as 10 propositions, each of which appellant relies upon for reversal of the judgment below.

At the time of trial on January 19, 1967, Sparks was 68 years of age. He testified that he went to work for Wells Fargo in 1916 as a joint train baggageman and messenger, working on board the Southern Pacific run between Hearne and Giddings. During World War I, Wells Fargo was consolidated into American Railway Express and later the name was changed to REA Express. In his alleged capacity as a joint train baggageman and messenger, Sparks has worked on the Santa Fe, Southern Pacific and Missouri Pacific railroad companies. He testified that in 1931, he went to work as a joint train baggageman and messenger with Missouri Pacific and worked on that line, although on several different runs, until he took his retirement in 1963, following the injury made the basis of this lawsuit. At the time Sparks received the injury of which he here complains, he was in the process of lifting a bag of mail on board Train 50 of the Missouri Pacific run from Houston to Baton Rouge, Louisiana. Sparks was lifting a bag of bulk mail in order to stack it in a doorway so that it could be unloaded at Baton Rouge, when he felt a burning or stinging sensation in the area of his groin, followed by a bulging. His condition was subsequently diagnosed as left inguinal hernia with an indirect inguinal hernia extending into the cord structures. He was operated on and the hernia was found and repaired, and the left testicle was removed. The operation took place on February 5, 1963, and following that Sparks remained off work for some three months. He testified that he continued to have a shooting pain in his left leg, and after his return to work, he felt a strain on his left leg. He quit work on August 30, 1963 after many years work as a joint train baggageman and messenger. He subsequently was employed as a school patrolman. Trial was almost four years after the date of injury.

The trial court submitted four groups of liability issues to the jury. Each issue was answered in favor of appellee. Special Issues 7, 8 and 9 inquired whether just prior to the occasion made the basis of this suit, the train on which the plaintiff was working made a sudden jerk; whether such action was negligence; and whether such negligence, if any, was a cause in whole or in part of the plaintiff's injuries. But in a sudden stop or slowing situation, the plaintiff must prove more than the mere fact that the train jerked or slowed. There is nothing in the record to show why the train jerked or slowed, whether there was reason for it, whether there was an emergency, or whether the jerking or slowing was unusual or extraordinary. There must be some evidence of appellant's negligence in a F.E.L.A. case, and the instant jerking or slowing is without any standard by which ordinary care can be measured. Herdman v. Pennsylvania Ry. Co., 352 U.S. 518, 77 S.Ct. 455, 1 L.Ed.2d 508; New York, New Haven etc. v. Henagan, 364 U.S. 441, 81 S.Ct. 198, 5 L.Ed.2d 183; Fort Worth & D.C. Ry. Co. v. Bell, 14 S.W.2d 856 (Tex.Civ.App.), err. ref; Taber v. Smith, 26 S.W.2d 722, 725 (Tex.Civ.App.), no writ; 40 Tex.Jur.2d, Sec. 37, p. 502. We sustain appellant's related points of error, and we hold that the sudden jerk under the facts without supporting proof, cannot form the basis for liability of Missouri Pacific.

Appellant complains that the three remaining groups of issues submitted to the jury which inquired as to a safe place to work, furnishing sufficient employees, and furnishing sufficient equipment, were each general and global issues, and that they were not specific enough to comply with Texas law, under the authority of Barclay v. C. C. Pitts Sand & Gravel Co., 387 S.W.2d 644 (Tex.Sup.); Roosth & Genecov Production Co. v. White, Inc., 152 Tex. 619, 262 S.W.2d 99 (Tex.Sup.); Fox v. Dallas Hotel Co., 111 Tex. 461, 240 S.W . 517, and similar authority. In Great Atlantic & Pacific Tea Co. v . Coleman, 259 S.W.2d 319 (Tex.Civ.App.), no writ; Texas & N.O.R. Co . v. Pool, 263 S.W.2d 582 (Tex.Civ.App), no writ; and Panhandle & Santa Fe Ry. Co. v. Arnold, 283 S.W.2d 303 (Tex.Civ.App), writ ref., n.r.e. (on remand 305 S.W.2d 207), Texas Courts of Civil Appeals have held that the issue inquiring whether a place was a reasonably safe place to work is a general one and is insufficient to impose liability against a defendant. In the case of Missouri Pacific Ry. Co. v. Prejean, 307 S.W.2d 284 (Tex.Civ.App.), no writ, the contrary seems to have been held by the Houston Court of Civil Appeals (First District). The Arnold case above, on certiorari to the United States Supreme Court, was reversed and remanded to the Amarillo Court of Civil Appeals, and a recovery was allowed the F.E.L.A. plaintiff in that case, the Supreme Court of the United States saying:

'* * * (T)he assertion of Federal rights, when plainly and reasonably made, is not to be defeated under the name of local practice.' 353 U.S. 360, 77 S.Ct. 840, 1 L.Ed.2d 1441.

In the Arnold case, the Texas court had held that a general finding that the railroad failed to furnish plaintiff with a safe place to work cannot stand in the face of specific findings exonerating the railroad of any negligence proximately causing plaintiff's injuries. In Thompson v. Robbins, 157 Tex. 463, 304 S.W .2d 111 (1957), the Texas Supreme Court reaffirmed the position that where an F.E.L.A. suit is brought in a Texas state court, the Texas Rules of Civil Procedure control, and thus Rules 277 and 279 are applicable to special issues and the submission of specific issues of fact to a jury in a Texas state court. See 38 Tex.Jur.2d, Sec. 202, pp. 434--435. Moreover, the majority sees no reason for the defeating of federal rights by a requirement that specific issues of fact be submitted to the jury under Texas procedural law. In view of the Robbins case, the majority feels that we are bound by the Texas rule as to the submission of special issues, and we accordingly follow that case. We hold that general or global issues cannot correctly be submitted to the jury, over proper objections, in a negligence case, including F.E.L.A. cases.

We do not, however, consider Special Issue No. 3 to be sufficiently global or general or that it should be stricken down under the above rule. The special issue was submitted as follows:

'SPECIAL ISSUE NO. 3

Do you find from a preponderance of the evidence that the Defendant Missouri Pacific Railroad Company, Inc., on or about the 25th day of January, 1963, failed to furnish the Plaintiff as many employees to help Plaintiff in the work he was doing on the occasion made the basis of this suit as would have been done by a person of ordinary prudence in the exercise of ordinary care under the same or similar circumstances?'

'We do.'

The issue simply asked the jury whether Missouri Pacific's failure to furnish sufficient employees to help plaintiff on the occasion in question was a failure to exercise ordinary care under the circumstances. The real question here presented is the sufficiency of the evidence to sustain the jury's answer to that issue. Sparks testified that mail helpers were supplied through request to the railroad. He further testified that he had requested the Missouri Pacific trainmaster to provide additional help, because the mail had continuously increased and the trains were running faster. He could not name the particular officials of Missouri Pacific to whom his requests were made for more help, but we believe he properly identified them. The officials were on the train or at the stations. He made one request for more help in November, 1962, before his injury in January, 1963. The mail and baggage duties were Missouri Pacific business, and he was paid five cents per hour for handling baggage. He made requests for help to REA and Missouri Pacific, and the record shows that he worked for both of them. If the business was express, he requested it through the express company. He was required to handle heavy canvas bags, some as heavy as 100 pounds. He would lift the bags and stack them, and he would drag them in the cars by a rope or by a metal label. The stopping and irregular movement of the train was something he always had to guard against. Mr. Walker, an employee of Missouri Pacific as assistant general manager, told Sparks that he was delaying the train and that he had to hurry and throw the mail...

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