Missouri Pac. R. Co. v. Cross, 8118

• Decision Date: 03 October 1972
• Docket Number: No. 8118,8118
• Citation: 487 S.W.2d 206
• Parties: MISSOURI PACIFIC RAILROAD COMPANY, Appellant, v. David L. CROSS, Appellee.
• Court: Texas Court of Appeals

Page 206

487 S.W.2d 206

MISSOURI PACIFIC RAILROAD COMPANY, Appellant, v. David L. CROSS, Appellee.

No. 8118.

Court of Civil Appeals of Texas,

Texarkana.

Oct. 3, 1972.

Rehearing Denied Oct. 24, 1972.

Howard Waldrop, Atchley, Russell, Hutchinson & Waldrop, Texarkana, for appellant.

Robert E. Ballard, Brown, Kronzer, Abraham, Watkins & Steely, Houston, Cahill Hitt, Hitt & Pesek, Texarkana, for appellee.

RAY, Justice.

This is a case involving the Federal Employers' Liability Act. Appellee (plaintiff) David L. Cross filed suit in the District Court of Bowie County against appellant (defendant) Missouri Pacific Railroad Company seeking damages for his personal injuries which he sustained on the job. Appellee Cross tripped over a protruding nail while unloading mail from appellant's unlighted piggy-back trailer on the night of February 8, 1969, in Texarkana, Texas. Appellee fell from the trailer, across a conveyor belt, and onto appellant's dock, suffering extensive injuries. The case was tried before a jury and pursuant to its verdict the trial judge rendered judgment in favor of appellee Cross in the sum of thirty thousand ($30,000.00) dollars. Appellant timely appealed to this court and has brought forward eleven points of error.

Appellant's first eight points of error complain of the trial court's failure to correct the typographical error contained in Special Issue No. 11. Special Issue No. 10 inquired as to whether or not it was negligence for appellee Cross to have failed to obtain a drop-cord on the occasion in question (for lighting purposes). Special Issue No. 11 should have been the proximate cause issue, but it was submitted as follows:

'Do you find from a preponderance of the evidence that the negligence, if any you have so found, of David L. Cross in failing to obtain a drop-cord at the time and on the occasion in question was negligence?'

Counsel for appellant candidly admits that he submitted this issue without properly proof reading it before the jury retired to deliberate. Objections to the charge were submitted to the court after the jury retired. There is some disagreement between counsel as to whether there was an 'agreement' to waive the requirements of Rule 272, Texas Rules of Civil Procedure requiring objections and exceptions to the charge to be made before the charge is read to the jury. We do not consider it necessary for the determination of this case to decide whether the requirements of Rule 272, Tex.R.Civ.P., are amendatory. However, it is obvious that had the objections and exceptions to the court's charge been made before it was read to the jury, it is likely that the typographical error would have been discovered before the jury retired to deliberate. One of the purposes of the rule is therefore obviated.

The jury found that appellant had failed to furnish appellee with a safe place to work and had failed to provide adequate lighting in the trailer in which appellee was working at the time of the injury, both of which were causes of his injuries. Appellant railroad company sought to reduce its damage by showing that appellee Cross was guilty of contributory negligence in failing to obtain a drop-cord with which to light the trailer. The burden was upon appellant to submit a correct series of issues in this regard. The evidence was far from conclusive that drop-cords were available on the evening in question, thus making it necessary for appellant to submit an issue to the jury for them to decide the fact question of whether or not such drop-cords had been made available by the employer (appellant) to the employee (appellee). Benton v. Wheless Drilling Company, 440 S.W.2d 373, 379, 386 (Tex.Civ.App. Houston First 1969, writ ref'd, n.r.e.). Since the burden was upon appellant to obtain the submission of a proper series of issues, the trial court did not err in disregarding Special Issues 10, 11, and 12 and in refusing to correct the typographical error complained of by appellant. The failure to correct the typographical error was immaterial, since the die had already been cast by appellant's failure to submit an 'availability' issue concerning the electrical drop-cords. We find no merit in appellant's points of error 1 through 8, and the same are therefore overruled.

By point of error No. 9, appellant complains of the trial court's failure to admit into evidence copies of the alleged pleadings of appellee Cross filed in a lawsuit pending in the U.S. District Court for the Western District of Arkansas. Appellant states that those pleadings asserted Cross's readiness and willingness to work, and therefore such pleadings were material on the question of Cross's injury and the extent thereof and the damages which Cross suffered.

We have concluded that the trial court correctly ruled that the pleading in the Federal Court action did not constitute an admission against interest, and that it did not impeach appellee's testimony concerning the nature and extent of his disability. Hartford Accident & Indemnity Company v. McCardell, 369 S.W.2d 331, 338, 339 (Tex.Sup.1963). The instrument offered as Missouri Pacific's Exhibit No. 12 involves a labor relations complaint filed in the Federal Court and is entirely unrelated to the physical incapacity of appellee Cross. Further, there was no true inconsistency between the Federal Court pleadings and the testimony of David Cross.

The evidence is undisputed that the attorney who filed the case in Federal Court had no authority to make any admissions applicable to the appellee. Appellee testified that he did not employ such attorney and that he did not give the...