Missouri-Pacific R. Co. v. Prejean

• Decision Date: 07 November 1957
• Docket Number: MISSOURI-PACIFIC,No. 13139,13139
• Citation: 307 S.W.2d 284
• Parties: RAILROAD COMPANY, Appellant, v. Alcide PREJEAN, Appellee.
• Court: Texas Court of Appeals

Page 284

307 S.W.2d 284

MISSOURI-PACIFIC RAILROAD COMPANY, Appellant, v. Alcide PREJEAN, Appellee.

No. 13139.

Court of Civil Appeals of Texas, Houston.

Nov. 7, 1957.

Rehearing Denied Dec. 5, 1957.

Hutcheson, Taliaferro & Hutcheson, Woodul, Arterbury & Wren, Carroll R. Graham and Howard S. Hoover, Houston, for appellant.

W. James Kronzer, Robert L. Steely, Hill, Brown, Kronzer & Abraham, Houston, Ragan & Weaver, Houston, of counsel, for appellee.

WOODRUFF, Justice.

Appellee, Alcide Prejean, filed this suit under the Federal Employers' Liability Act, 45 U.S.C.A. Sec. 51 et seq., seeking a recovery of damages for personal injuries received by him on December 3, 1953, while acting within the course and scope of his employment with Guy A. Thompson, receiver of Beaumont, Sour Lake & Western Railway Company. Before hte trial on October 30, 1956, the Missouri-Pacific Railroad Company was substituted as the party-defendant, it having acquired the assets and liabilities of the Beaumont, Sour Lake & Western Railway Company from the receiver.

Appellee alleged and offered proof showing that while working as a car helper in the repair yards used by appellant, he was instructed by his superior to rebrass the journals of the wheels of several cars, including a tank car. In order to perform this work, it was necessary to raise the weight of the car off of the axle by the use of a jack placed beneath the journal box, and after it was raised, to insert his hand therein and remove the brass bearings. He further alleged that the jack gave way while his hand was in the journal box letting the weight of the car fall and thereby mashing and severely injuring his hand.

The case was tried to a jury and by the verdict returned in response to the special issues submitted in the charge, it was found that the appellant failed to furnish appellee with blocks to support the railroad car after it was jacked up; that such failure was negligence which proximately caused the injury; that the appellant failed to furnish appellee 'a safe place in which to do his work' which was negligence proximately causing his injuries; that the appellant did not furnish a defective jack for appellee's use on the occasion in question; that the event was not an unavoidable accident; and that appellee did not fail to set the jack square and straight under the journal box. The jury found that appellee had been damaged in the sum of $15,000 for loss of earnings from date of injury to the date of trial, loss of earning capacity in the future, and physical pain and mental suffering and anguish both past and future.

The trial court rendered judgment awarding appellee a recovery against appellant for $15,000, less $427 which the Railroad Retirement Board recovered against appellant by way of subrogation for payments made by it to appellee. A motion for new trial was filed and thereafter an amended motion setting forth the grounds here raised was filed, duly presented and overruled, to which action due exceptions were taken, notice of appeal given, and all procedural steps complied with, thus perfecting an appeal to this Court.

Appellant's first contention is that there was no evidence or, if any, the evidence was wholly insufficient to raise or support the issues submitted to the jury on the question as to whether or not appellant was negligent in failing to furnish appellee with blocks to support the railroad car and also in failing to furnish him 'a reasonably safe place in which to do his work.'

Appellee Prejean, after having first described the nature of the work involved in oiling and rebrassing the journals on freight cars, testified that the hydraulic jack he was using on the occasion in question was about ten inches high, with a base about four inches square at the bottom, and a top about one and one-half inches in diameter. He further testified that the car repairmen were never instructed to use blocks to support the cars after they were jacked up and while rebrassing a journal, nor were they ever told that any such blocks were available. He further stated that he had had no trouble with the jack earlier that morning when using it on other cars. On this car, so he testified, he had placed the jack beneath the journal box on a flat surface shown to be about two and one-half inches wide and six inches long, raised it a few inches, removed the wedge and brass from the journal box and was in the act of wiping the journal when the car 'fell', catching his hand and wrist between the journal and the journal box, which caused the injuries to his hand and wrist.

He further testified that it had rained the day before and a part of the night prior to the accident and that the ground was wet and soggy, with water standing on the job site. It was shown, too, that a member of the safety committee had on prior occasions called the Railroad's attention to the fact that water sometimes stood on the site. Several witnesses testified that they had known of prior trouble with jacks going down, or not going up; that the jacks were frequently repaired; that they couldn't say it was the particular jack in question because there is no way of distinguishing them; that a couple of them leaked fluid once in a while; and that they had had cases where jacks would go bad and they would be taken out of service. It was also shown by the testimony that the tank car involved weighed about 43,000 pounds and that there was about 5,000 to 6,000 pounds of weight on each wheel. It was further shown by one of appellant's witnesses that on 'the big jacks' the use of oak timbers was required to prevent the car from falling, but not on the hydraulic jacks, and that the use of blocks under the spring side would be a safety precaution.

Since this suit was brought under the provisions of the Federal Employers' Liability Act, 45 U.S.C.A. Sec. 51 et seq., the test of what constitutes negligence and the sufficiency of the evidence to raise that question for the jury is to be determined by the applicable Federal decisions. Port Terminal Railroad Association v. Ross, Tex., 289 S.W.2d 220; Missouri-Kansas-Texas Railroad Company v. Webb, Tex.Civ.App., 229 S.W.2d 204, writ refused n. r. e. Appellant, in its brief, has cited the case of Thompson v. Gibson, Tex., 298 S.W.2d 97, in support of its contention that the evidence was wholly insufficient, under the Federal Employers' Liability Act, to raise a fact issue of negligence on the part of the appellant in failing to furnish blocks to support the railroad cars after they were raised by the jacks. In that case the railroad engineer sued his employer alleging that while in the discharge of his duties and while walking from the roundhouse to a place where his engine had been spotted, on loose gravel which covered the yard and which he alleged created an unsafe condition, he slipped and fell, thus sustaining serious and permanent injuries. Upon favorable findings of negligence and proximate cause, the trial court rendered judgment for the plaintiff, which action of the trial court was affirmed by the Court of Civil Appeals. Our Supreme Court of Texas reversed and rendered the judgment of the trial court because it found, as a matter of law, there was no evidence of negligence in the use of the gravel on the yard by the appellant under the facts and circumstances of that case.

While recognizing the rule applicable in these cases to the effect that in testing the sufficiency of the evidence to raise an issue for the jury must be determined by the Federal, decisions, it was held that such rule did not govern the State courts in determining the question of 'no evidence.'

Appellant conceded in oral argument upon submission of this case, the Supreme Court of the United States on October 21, 1957, granted a writ of certiorari and reversed and remanded the case with the following memorandum opinion [Gibson v. Thompson, 78 S.Ct. 2, 3]:

'We hold that the proofs justified with reason the jury's conclusion that employer negligence played a part in producing the...