Missouri Pac. R. Co. v. Mendoza, 3739

• Decision Date: 07 July 1960
• Docket Number: No. 3739,3739
• Citation: Missouri Pac. R. Co. v. Mendoza, 337 S.W.2d 622 (Tex. Ct. App. 1960)
• Parties: MISSOURI PACIFIC RAILROAD COMPANY, Appellant, v. Frank G. MENDOZA, Appellee.
• Court: Texas Civil Court of Appeals

Page 622

337 S.W.2d 622

MISSOURI PACIFIC RAILROAD COMPANY, Appellant, v. Frank G. MENDOZA, Appellee.

No. 3739.

Court of Civil Appeals of Texas, Waco.

July 7, 1960.

Rehearing Denied July 29, 1960.

Arterbury, Hoover & Graham, Houston, for appellant.

James H. Campbell, Hill, Brown, Kronzer & Abraham, Robert L. Steely, Houston, for appellee.

TIREY, Justice.

This is a negligence case. Plaintiff grounded the action under the provisions of Section 51 et seq., of 45 U.S.C.A., (Federal Employers' Liability Act) and the amendments thereto. Defendant entered a general denial and by trial amendment specially plead that plaintiff was negligent and that such negligence was a proximate cause of his injuries, in that plaintiff failed to get in a proper position before attempting to raise the brake shoe and lift it off of the rail, and that such negligence was the sole proximate cause of his injuries. In the alternative, defendant alleged that plaintiff's negligence constituted 90% of the total negligence involved, and further plead that the occurrence was the result of an unavoidable accident. Defendant's Motion for directed verdict was overruled. The jury found substantially: (1 and 2) That Terry, the fellow workman and the man in the pit, failed to use the iron bar to prevent the brake shoe from falling onto the rail as would have been done by a reasonably prudent person exercising ordinary care, and that such failure was the proximate cause for the occurrence of July 13, 1957; (3 and 4) That Terry ordered the brake shoe released when the iron bar was not in place, but that such act on the part of Terry was not negligence; (6 and 7) That the Railroad Company failed to furnish such equipment to prevent the brake shoe from falling onto the rail as would be furnished by a reasonably prudent employer, and that such failure was the proximate cause of the occurrence; (8 and 9) That the Railroad Company failed to furnish to Mendoza such a safe place in which to work as would have been furnished by a reasonably prudent employer exercising ordinary care, and that such failure was the proximate cause of the occurrence; (10) That Mendoza did not fail to get into such a position before attempting to lift the brake shoe in question off the rail as would have been done by a reasonably prudent person exercising ordinary care; (14) That the occurrence was not the result of an unavoidable accident; (15) The jury awarded plaintiff the sum of $35,000 to compensate him for his injuries. The Court overruled Defendant's Motion for Judgment Non Obstante Veredicto, and granted Plaintiff's Motion and entered judgment for plaintiff in the sum of $34,698.87, and awarded to the United States Retirement Board the sum of $301.13, with interest, and taxed costs against defendant.

The judgment is assailed on eight points; they are substantially to the effect that the Court erred:

(1 and 3) In overruling Defendant's Motion for Instructed Verdict, and its Motion for Judgment Non Obstante Veredicto, and in entering judgment for appellee, because there is no competent evidence in the record which supports a finding of negligence against the defendant, and because there is no competent evidence tendered to support a finding that any negligent act or omission on the part of defendant was a proximate cause of appellee's injuries.

(2 and 4) In submitting issues 1, 6 and 8, and 2, 7 and 9, because there is no competent evidence to support an affirmative answer to any of said issues.

(5 and 6) In refusing to set aside the answers of the jury to Issues 1, 6 and 8, and to Issues 2, 7 and 9, because the answers of the jury to each issue are so against the great weight and preponderance of the evidence as to be manifestly wrong.

(7) In overruling Defendant's objection 'C' to Special Issue No. 15.

(8) Because the amount of damages awarded by the jury in answer to Issue No. 15 in the sum of $35,000 is grossly excessive at least in the sum of $20,000, and the verdict should be set aside for the reason that an award so grossly excessive clearly evidences the deep seated prejudice on the part of the jury against appellant and is clearly against the overwhelming preponderance of the evidence as to the extent of plaintiff's injuries. In the alternative, the Court should require that a remittitur in the sum of $20,000 be filed and in the event a remittitur is not filed, the judgment should be set aside, and a new trial ordered.

Defendant, in its brief, says substantially that the first four points present the contention that there is no evidence to support the findings of negligence and proximate cause made by the jury, and they brief them together. In appellant's brief we find substantially the following statement:

The facts relative to the liability issue are not in substantial dispute. Briefly, the Plaintiff received whatever injury he has while he was working in Settegast Yards on July 13, 1957. He and two other employees were engaged in renewing five brake shoes on a locomotive which was then in the shops. They had renewed four of the brake shoes and were in process of renewing the fifth, when the incident in question occurred. The old shoe had been taken off and the three were in the process of placing a new shoe on. One of the employees, Davis, was standing approximately four feet from the locomotive wheel, where the plaintiff was located, holding the brake rigging back so as to give the plaintiff some slack between the rigging and the wheel so that the brake shoe could be fitted. The other employee, Terry, was in the pit, underneath the locomotive. The plaintiff placed the brake shoe on top of the locomotive wheel and slid it around the wheel, but the shoe, instead of stopping at the place were it should have stopped, slid down to the rail. No injury occurred, nor was anyone hurt by the shoe sliding down to the rail. However, since it was on the rail it was necessary that it be raised back up to the proper position which, according to the plaintiff, was about 12 or 18 inches from the rail. The plaintiff therefore reached down, on his knees, and, with the help of Terry, lifted the shoe back up to its proper location. It was after this job had been completed and the plaintiff had stood up that he stated that he felt a burning sensation in his stomach and groin. There was no other incident and the plaintiff did not, according to his admission, slip or fall while lifting the brake shoe. Appellants then quote from Mendoza's testimony:

'On the night in question I had been working with Mr. Terry and Mr. Davis most of the night. We had put the entire eight hours in working together. When we first started on this brake job we picked the brake shoes up at the end of the shop. The laborers bring them to that point. There were five brake shoes to put on this engine on this night and we were putting the last one on when the incident occurred. When putting the other brake shoes on we just kinda divided up. Sometimes I lifted it and sometimes one of the other men lifted it and which ever one came first, well he lifted it up and put it on the wheel. That's the way it goes, we are all working together. I had put some of the other brake shoes up on the wheel that night. Mr. Terry had put some of the others up and Mr. Davis had put some of the others up. On this particular occasion, the one in question, I think that I put the brake shoe up on the wheel. Mr. Davis was pushing the slack out of the brake rigging so that we would have enough room to work and Mr. Terry was in the pit. I put the shoe up by myself and was holding it as it came over the side. Before I turned the shoe loose I asked Mr. Terry if he was ready and he said, 'Yes, I am ready', and I replied, 'Well here I go with the shoe', and I just let it go down. You just have to get your hands off of it, because you can't hold it anymore, let it go. I do not know whether there was a bar there to catch it (the brake shoe) or not. I just asked him if he was ready to hold it and he said yes turn it loose. That's what I did and it went on down to the rail. I didn't say anything to him about it going on down to the rail.

'Q. Was that the first one that had gone by to the rail that evening? A. I think so.

'Q. The way you say it makes me think you're not too sure on that point. A. Well, I can't remember it because, like I tell you, we were rushing and we put five shoes on that evening. And so I don't remember whether another one before that fall down on the rail. But in case they do, why, we just have to lift it and put it back, that's all.

'Q. It wasn't too unusual for them to go on down to the rail, was it? A. No. That happened lots of times.

'Q. And once they got down on the rail, you followed the usual procedure in getting it back up in place, did you not? A. You just have to pick it up and push it up and put 'em in place that's all.

'Q. You had lifted several before this one, had you not? A. Oh, yes. Yes sir. We do that every day.

'Q. And you did it the same way on this occasion as you have done previously, did you not? A. Yes.

'Q. Had you ever made any complaints or said anything to the foreman about having some bar or some stand or something there to catch it in case it went by? A. No sir. Nobody did. We just did it the best way we can.

'Q. Well, that's the way you have always done it? A. Always done it, yes sir.

'Q. And neither Mr. Humbert nor any of the foremen were there telling you how to do it, were they? A. He just tell you to do this, and that's all; you better know how to do it.

'Q. Well, you are a man of long experience---- A. Yes sir.

'Q. --in that type of work, so he could be assured that you were familiar with the correct way to do this work? A. That's right.

'Q. That was your job, after you had been there for so long as you have been there, to know how to do those things, isn't it? A. Yes, sir.

'Q. Mr. Humbert or no other foreman was standing over you while you were doing the work...