Missouri Pac. R. Co. v. Ramirez

• Decision Date: 04 June 1959
• Docket Number: No. 3651,3651
• Citation: 326 S.W.2d 50
• Parties: MISSOURI PACIFIC RAILROAD CO., Appellant, v. Noe RAMIREZ, Appellee.
• Court: Texas Court of Appeals

Page 50

326 S.W.2d 50

MISSOURI PACIFIC RAILROAD CO., Appellant, v. Noe RAMIREZ, Appellee.

No. 3651.

Court of Civil Appeals of Texas, Waco.

June 4, 1959.

Rehearing Denied July 16, 1959.

Dickens & Dickens, Marlin, John b. McNamara, Jr., Waco, for appellant.

Koehne & Fulbright, Sherwin A. Winniford, Abner V. McCall, Waco, for appellee.

McDONALD, Chief Justice.

Plaintiff Noe Ramirez instituted this suit against defendant Missouri Pacific Railroad Company for personal injuries under the Federal Employers' Liability Act (45 U.S.C.A. Sec. 51 et seq.), and alleged a cause of action as a result of a violation of the Safety Appliance Act. Plaintiff was an employee of defendant who was assigned the duty of caboose supply, which assignment entailed the servicing of cabooses for defendant, including replenishing of ice in the cabooses serviced. Plaintiff alleged that on the night of 7 March 1957 he was taking a block of ice weighing approximately 50 pounds into caboose 281 in defendant's Mart yard in McLennan County, Texas; that on the caboose there was a stairway at the rear of same practically perpendicular to the ground; that from the ground to the first step is a distance of 18 inches; that the first step is 20 inches wide and approximately 6 inches deep; that plaintiff's left foot slipped on such first step, causing him to fall to the ground, causing injuries to his left foot, ankle, and back (as well as other injuries). Plaintiff alleged that defendant was guilty of various acts of negligence proximately causing his injuries; and that the steps on caboose 281 were not safe and suitable, in violation of the Safety Appliance Act, 45 U.S.C.A. Sec. 1 et seq., and under Order of the Interstate Commerce Commission issued pursuant to the Safety Appliance Act, such order being as follows:

'Caboose Platform--Steps

'Safe and suitable box steps leading to caboose platforms shall be provided at each corner of caboose.'

Trial was to a jury. In response to Special Issues the jury found:

1. Defendant failed to provide adequate lighting for plaintiff to perform the duty of transporting ice to the inside of caboose 281.

2. Such failure was negligence.

3. Such was a proximate cause of plaintiff's injuries.

4. 'Do you find from a preponderance of the evidence, if any, that the defendant failed to provide steps on caboose 281 of sufficient width for the plaintiff to transport the ice into the caboose with safety?'

Answer: 'it did not fail.'

5 and 6. Unanswered.

7. 'Do you find from a preponderance of the evidence, if any, that the box steps leading to the platform of caboose 281, at the time and place and on the occasion in question, were safe and suitable?'

'Answer: 'They were not.'

8. 'Do you find from a preponderance of the evidence, if any, that the failure to provide safe and suitable box steps, if you have so found, on the part of the Missouri Pacific Railroad Company was negligence?'

Answer: 'No.'

9. Do you find from a preponderance of the evidence, if any, that the failure to provide safe and suitable box steps, as inquired about, if you have so found, was a proximate cause of the injuries, if any, here complained of?'

Answer: 'Yes.'

10. The damage issue was answered: $90,000.

11. Finds that negligence of the plaintiff bore 60% to the entire negligence of plaintiff and defendant.

12, 13 and 14. Convict plaintiff of contributory negligence proximately causing his injuries.

15. Finds plaintiff's negligence was not the sole proximate cause of his injuries.

16, 17 and 18. Acquit plaintiff of a further alleged act of contributory negligence.

Based on the foregoing verdict the Trial Court entered judgment for the plaintiff for $90,000. Defendant's motions for new trial were overruled.

Defendant appeals on the following points:

1. The court should have disregarded the jury's answer to Issue 7 because:

a. Such answer is merely the expression of the jury's opinion that the regulations of the I.C.C. regarding box steps are inadequate, and

b. There is no evidence to support the jury's answer thereto.

2. There is a fatal conflict in the answers of the jury to the Special Issues submitted by the court.

3. Defendant was deprived of the jury's favorable findings of plaintiff's contributory negligence.

4. The award of the jury is grossly excessive and indicates that the large amount awarded was:

a. To offest the diminution of damages by reason of plaintiff's contributory negligence, or

b. The result of passion and prejudice by the jury in favor of plaintiff, or

c. Against defendant.

5. The charge of the court relative to comparative negligence was misleading and confusing to the jury and unnecessarily revealed to the jury the effect of their answers to the Special Issues submitted.

6. The court erred in excluding the testimony of G. R. Jackson.

7. The court erred in not giving effect to the jury's answer to Issue 8 because thereby the court substituted its findings for that of the jury, and a. Negligence could not be presumed in the face of a positive finding by the jury of no negligence.

We revert to defendant's lst contention, which is that the Trial Court should have disregarded the jury's answer to Issue 7 because a) such answer is merely an expression of the jury's opinion that the regulations of the I.C.C. regarding box steps are inadequate, and b) there is no evidence to support the jury's answer thereto.

The applicable regulation of the I.C.C. provides: 'Safe and suitable box steps leading to caboose platforms shall be provided at each corner of caboose.'

The jury found in answer to Issue 7 that the box steps leading to the platform of caboose 281 at the time and place and on the occasion in question were not safe and suitable.

Defendant contends that such is not a finding that the statutory regulation had been violated, and that there is no evidence to support such finding.

We cannot agree with defendant's contentions. The issue submitted was in the words of the applicable regulation. Whether caboose steps are 'safe and suitable' as prescribed by the I.C.C. regulations is a proper jury issue. Stewart v. St. Louis S. F. R. Co., Mo.App., 262 S.W. 440; Davis v. Reynolds, 258 U.S. 627, 42 S.Ct. 383, 66 L.Ed. 798; Knight v. Chicago & N. W. Ry. Co., 3 Ill.App.2d 502, 123 N.E.2d 128. The defendant filed no motion in the Trial Court to disregard the finding. In the absence of motion and reasonable notice as required by Rule 301, Texas Rules of Civil Procedure, the Trial Court could not disregard such finding. Edmiston v. Texas & N. O. R. Co., 135 Tex. 67, 138 S.W.2d 526, (Com.App., opinion adopted Sup.Ct.); Wilton v. Johnson, Tex.Civ.App., 278 S.W.2d 488; Hines v. Parks, 128 Tex. 289, 96 S.W.2d 970, 972 (Com.App., opinion adopted Sup.Ct.); Continental Nat. Bank v. Hall-Page Tire Co., Tex.Civ.App., 318 S.W.2d 127, 129. Further to the foregoing, the record reflects the step was slick; was worn to about 1/2 its original thickness; that the mesh top was worn, slick and uneven. We think the record ample to reflect that it was not unreasonable for the jury to believe and find that the steps leading into caboose 281 were not safe and suitable for the use which was of necessity made by the plaintiff. See Cavanaugh v. Davis, 149 Tex. 573, 235 S.W.2d 972.

Plaintiff plead a violation of the Safety Appliance Act, introduced evidence to substantiate same, secured a jury finding thereon. Defendant's 1st point and the contentions thereunder made are overruled.

Defendant's 2nd contention is that fatal conflict exists in the jury's answer to Issues 4 and 7. By its answer to Issue 4 the jury found that defendant did not fail to provide steps on caboose 281 of sufficient width for plaintiff to transport the ice into the caboose with safety. By its answer to Issue 7 the jury found that the box steps leading to the platform of caboose 281 at the time and place, and on the occasion in question, were not safe and suitable. We fail to perceive a conflict between these findings. The steps on the caboose were of sufficient width for plaintiff to transport the ice with safety. This in no way forecloses a possibility that the steps were for some other reason, not safe and suitable. Indeed the record before us reflects that the depth of the steps was 6 1/2 inches; and that they were slick and worn. The finding that the width of the steps was sufficient to comport with safety does not preclude the existence of other factors (which the evidence discloses existed) rendering the steps unsafe or unsuitable. The applicable regulation does not confine the meaning of safe and suitable to width of the steps only, therefore, if the jury upon proper evidence found that any other feature or features of the steps failed to be safe or suitable, then they were justified in concluding as they did. Since both findings can be true, there is no irreconcilable conflict therein. See: Graham v. Dallas Ry. & Terminal co., Tex.Civ.App., 165 S.W.2d 1002, 1006, W/E Ref.; Dillard v. Traders & General Ins. Co., Tex.Civ.App., 271 S.W.2d 825, 829; Hancock v. Sammons, Tex.Civ.App., 267 S.W.2d 252, W/E Ref. NRE; Fort Worth & D. Ry. Co. v. Britton, Tex.Civ.App., 310 S.W.2d 654, 657, W/E Ref. NRE; 41-B Tex.Jur, p. 802. Defendant's 2nd contention is overruled.

Defendant's 3rd contention is that it was deprived of the benefit of the jruy's favorable finding of plaintiff's contributory negligence. Defendant here contends that since plaintiff was found guilty of contributory negligence that the award should be reduced by 60% or the amount that plaintiff's contributory negligence bore to the total negligence. This would be true if this judgment depended upon the negligence of the defendant alone, as found in Issues 1, 2, and 3. Appellant states in its brief that it recognizes the principle that if it is guilty of a violation of the safety Appliance Act it is not entitled to have the award diminished by the percentage of plaintiff's comparative negligence....