Missouri Pac. R. Co. v. American Statesman

• Decision Date: 09 June 1976
• Docket Number: No. 12407,12407
• Citation: 538 S.W.2d 229
• Parties: MISSOURI PACIFIC RAILROAD COMPANY, Appellant, v. AMERICAN STATESMAN, Appellee.
• Court: Texas Court of Appeals

Page 229

538 S.W.2d 229

MISSOURI PACIFIC RAILROAD COMPANY, Appellant, v. AMERICAN STATESMAN, Appellee.

No. 12407.

Court of Civil Appeals of Texas Austin.

June 9, 1976.

Rehearing Denied July 7, 1976.

Bond Davis, Marshall B. Miller, Jr., Gresham, Davis, Gregory, Worthy & Moore, San Antonio, for appellant.

Barry Bishop, Clark, Thomas, Winters & Shapiro, Austin, for appellee.

SHANNON, Justice.

Appellee, American Statesman, filed suit in the district court of Travis County against appellant, Missouri Pacific Railroad Company, for damages. After trial to a jury, judgment was entered for appellee for $12,000.00. We will affirm that judgment.

In its trial pleading, appellee alleged that on July 12, 1972, appellant permitted one of its boxcars to collide with appellee's overhead scaffolding frame. The frame was attached to appellee's building and was placed by appellee above appellant's tracks, allegedly with appellant's 'prior knowledge and permission,' for the purpose of conveying press units away from appellee's building to a new location. As a result of the collision, appellee claimed damages in the sum of $20,000.00 to its scaffolding and building.

Appellee pleaded that prior to its construction of the scaffolding, the plans and specifications were reviewed by appellant's agents who recommended that the scaffolding be placed at a height of twenty-two feet from the center of the tracks to the top of any boxcar which might be moved along the tracks adjacent to appellee's building. Because it was not possible for appellee to place the scaffolding at the recommended height of twenty-two feet without major changes being made to its building, appellee sought approval from appellant to permit the construction of the scaffolding with a clearance of sixteen feet, four inches above the tracks. Appellee pleaded that L. E. Murphy, freight agent for appellant, verbally granted permission for construction at sixteen feet, four inches.

Appellee alleged that appellant and its agents were negligent in several respects. Among other things, appellee pleaded that appellant was negligent:

(a) In advising appellee that if the scaffolding were built sixteen feet four inches, that it would clear any of appellant's boxcars which would be used on the tracks adjacent to appellee's building.

(b) In moving a boxcar with a height of sixteen feet, ten and seven-eighth inches under the scaffolding with prior knowledge that the scaffolding was only sixteen feet, four inches in height.

(c) In failing to obey a specific order of appellee's agent not to move the said car at the time of the collision.

By trial amendment, appellee also declared that appellant waived any right to rely upon the violation of Tex.Rev.Civ.Stat.Ann. art. 6559a. That statute requires that all structures built over the tracks of a railroad be placed so as to permit twenty-two feet of clearance.

Appellant pleaded, among other things, that the collision was occasioned by the negligence of appellee (a) in constructing the scaffolding at a height less than twenty-two feet in violation of Art. 6559a, (b) in constructing the scaffolding at an 'insufficient height' to permit appellant's boxcars to pass safely, and (c) in advising appellant's switching crew that the scaffolding was high enough to permit the boxcar to be moved under the scaffolding.

The court's charge contained thirteen special issues. In response to those issues the jury answered that appellant or its agent assured appellee that if the scaffolding were built with a clearance of sixteen feet, four inches, it would accommodate any boxcar which appellant would move under the scaffolding. The jury answered additionally that the giving of such assurance by appellant was negligence and that such negligence was a proximate cause of the collision. The jury answered further, in this connection, that appellee relied upon appellant's assurance in constructing its scaffolding. The jury responded as well that appellant's moving the boxcar into the scaffolding was negligence and that such negligence was a proximate cause of the collision.

With respect to the special issues inquiring of appellee's contributory negligence, the jury answered that appellee's failure to construct the scaffolding with a clearance of twenty-two feet was negligence, but the jury failed to find that the failure to so construct the scaffolding was a proximate cause of the collision.

Finally, the jury answered that appellant waived its right to require appellee to construct the scaffolding with a clearance of twenty-two feet.

Appellant attacks the judgment by seven points of error. The first three points concern the refusal of the district court to submit a cluster of negligence issues, the first of those issues being whether '. . . before July 12, 1972, plaintiff's agent or employee advised one or more of the members of defendant's switching crew that the tram (scaffolding) in question built over defendant's railroad track was built high enough to permit defendant's railroad cars to move through and under said structure . . .' The remaining part of the cluster of requested issues consisted of the negligence and proximate cause issues.

In reply, appellee maintains that there was no evidence in support of the submission of requested issues, and even though there might have been some evidence to support the submission of the issues, the requested issues were not material and not controlling. Appellee called Jack J. Harbour. Harbour was the 'boss of the switching crew' in the area of tracks near appellee's building. In this respect Harbour testified that he had seen the scaffolding work in progress. He was told by persons in the railroad company that there was clearance under the scaffolding for the movement of boxcars. Harbour had switched a number of boxcars under the scaffolding during a period of two or three weeks before the time of the collision.

In response to a question concerning the identity of the person in the railroad organization who had furnished him the information about clearance, Harbour replied:

'No, the first one that told me that it would clear is the fact that when we went under there the first time with a car, the ones that was working on the dock, I complained about it and asked them if they had permission to put it up there, and they said that they did and I said, 'Well, I will have to talk to somebody else about it,' and I did; I talked to Mr. Murphy (freight agent for appellant) about it and he was the one that told me that it would clear. He said the engineer said it was all right so that's all I had to go by.'

Portions of Harbour's oral deposition were read into evidence. Included in Harbour's deposition testimony introduced into evidence was the following:

'Q Did anyone connected with the Statesman ever tell you prior to this accident on July 12 that this structure was high enough to clear cars?

'A Yes. The boy that unloaded out there, they said it would clear and it was okay.'

We do not pass on whether or not there was some evidence so as to require the submission of the requested issues since we are in agreement with appellee that answers to those issues would not be material and controlling. It would be surprising for appellant railroad company...