Missouri Pacific Railroad Company v. Cross

• Decision Date: 19 September 1973
• Docket Number: No. B--3698,B--3698
• Citation: 501 S.W.2d 868
• Parties: MISSOURI PACIFIC RAILROAD COMPANY, Petitioner, v. David L. CROSS, Respondent.
• Court: Texas Supreme Court

Page 868

501 S.W.2d 868

MISSOURI PACIFIC RAILROAD COMPANY, Petitioner, v. David L. CROSS, Respondent.

No. B--3698.

Supreme Court of Texas.

Sept. 19, 1973.

Atchley, Russell, Hutchison & Waldrop, Howard Waldrop, Texarkana, for petitioner.

Brown, Kronzer, Abraham, Watkins & Steely, W. James Kronzer, Houston, Cahill Hitt, Texarkana, for respondent.

DANIEL, Justice.

This appeal involves a judgment in favor of the plaintiff, David L. Cross, against the Missouri Pacific Railroad Company, defendant, in a personal injury suit brought under the Federal Employers' Liability Act, 45 U.S.C.A. Sec. 51 et seq. Upon a jury finding of total damages to Cross in the sum of $30,000, and findings that the negligence of Missouri Pacific was the proximate cause 'in whole or in part, of the injuries,' the trial court rendered judgment for Cross in the entire amount, although there were jury findings that Cross was contributorily negligent and that his negligence amounted to thirty percent of the entire negligent which caused his injuries.

For reasons hereinafter explained, the Court of Civil Appeals held that the trial court did not err in disregarding the jury's findings relating to the negligence of Cross (Special Issues 10, 11 and 12), and affirmed. 487 S.W.2d 206. We reverse and remand.

On the night of February 8, 1969, Cross, while in the course of his employment by Missouri Pacific, tripped over a protruding nail while unloading mail from an unlighted 'piggy-back' trailer. Cross fell from the trailer, across a conveyor belt, and onto the railroad's dock, suffering extensive injuries. He alleged that Missouri Pacific failed to furnish a safe place in which to perform his work and that the trailer was not properly lighted.

The jury found in answer to Special Issue No. 1 that the defendant railroad failed to furnish David Cross a safe place to work, and in answer to Special Issue No. 2 that such failure was a cause, 'in whole or in part,' of the injuries sustained by Cross on the occasion in question. In answer to Special Issue No. 3, the jury found that the defendant railroad failed to provide adequate lighting in the trailer at the time and on the occasion in question, and in answer to Special Issue No. 4 found that such failure was a cause, 'in whole or in part,' of the injuries sustained by Cross.

The above quoted words of the causation issues were taken verbatim from Sec. 52 of the Federal Employers' Liability Act, Sec. 53 of which eliminates contributory negligence as a bar to recovery by an employee but permits contributory negligence to diminish damages under the doctrine of proportional or comparative negligence. The Federal Act prescribes the substantive rights of the parties in F.E.L.A. cases, but when filed in our State courts, they are generally to be tried in accordance with our own Rules of Civil Procedure. Thompson v. Robbins, 157 Tex. 463, 304 S.W.2d 111 (1957).

Special Issues 5 through 9 inquired whether Cross failed to keep a proper lookout and whether he failed to inspect the trailer, each being followed by conditional inquiries as to whether such acts were proximate causes of his injuries. In this series, only the issue on failure to inspect was answered against him; the negligence and proximate cause issues being answered in his favor or left unanswered. Then followed the three issues and answers which give rise to this appeal:

SPECIAL ISSUE NO. 10. Do you find from a preponderance of the evidence that the failure of David L. Cross to obtain a drop cord at the time and on the occasion in question was negligence?

Answer 'Yes' or 'No'.

Answer: Yes

In the event you have answered the foregoing Special Issue 'Yes' and in that event only you will answer the following Special Issue.

SPECIAL ISSUE NO. 11. 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? (emphasis added)

Answer 'Yes' or 'No'.

Answer: Yes

If by your answer to any of the already submitted Special Issues you have found (1) that Plaintiff, David L. Cross, was negligent in his acts or conduct and further that such negligence was a proximate cause of his injuries, and (2) that Defendant, Missouri Pacific Railroad Company, was negligent in any of the respects charged by Plaintiff and that such negligence resulted in whole or in part in Plaintiff's injuries, then, and in that event only, will you answer the following Special Issue.

SPECIAL ISSUE NO. 12. What per cent, if any, do you find from a preponderance of the evidence does the negligence, if any, of the Plaintiff bear to the entire negligence, if any, of both the Plaintiff and the Defendant?

Answer by giving the percentage.

Answer: 30%

As heretofore indicated, the final Special Issue (No. 13) inquired 'what sum of money . . . would fairly and reasonably compensate David Cross for his injuries, if any, which . . . resulted from the occurrence in question?', and the jury answered $30,000.

It will be noted that Special Issue No. 11 is not worded as a proximate cause issue. It merely asks if 'the negligence, if any' of Cross in failing to obtain a drop cord (light) 'was negligence'. About twenty minutes after the jury retired, and while counsel for plaintiff was dictating his objections to the charge, counsel for defendant discovered this typographical error in Issue No. 11 and filed a motion with the Court to have it corrected so that the last phrase would read, 'was a proximate cause of the injuries for which he sues here?' The trial court refused, citing an agreement made by the court and the attorneys 'that Objections and Exceptions to the charge could be made while the jury was deliberating provided there would be no new issues or definitions requested by either party,' all of which was clearly in violation of Rule 272, Texas Rules of Civil Procedure. ¹

After the jury had deliberated for approximately an hour and thirty minutes, the foreman sent the following written message to the trial court: 'We would like to have issue #10 and #11 explained to us.' Whereupon, again by agreement of court and counsel and contrary to Rules 272 and 286, the court and counsel proceeded from the courtroom to another floor on which the jury room was located, and met with the jury in the hallway. The foreman repeated the request orally and the trial court orally stated that Special Issue No. 10 inquired whether or not failure to obtain a drop cord was negligence and that Special Issue No. 11 inquired whether or not it was a proximate cause of the injuries for which plaintiff sued. Upon returning to his chambers with counsel for both parties, the court drafted a different written response to the jury, as follows: 'In answer to your question, please resume your deliberations and answer the issues from a preponderance of the evidence.' Whereupon, counsel for the defendant railroad moved for a mistrial because of the facts related above and because the additional written charge did not conform to the oral charge as given by the court. This and another Motion for Correction of the typographical error in Special Issue No. 11 were denied by the trial court. The jury returned its verdict on September 1, 1971; on September 13, 1971, Cross filed a motion for judgment in his favor 'in response to the answers of the jury to the charge of the Court;' and on October 7, 1971, the trial court rendered judgment for Cross in the full amount of $30,000. Obviously, the trial court disregarded the jury's answers to Special Issues 10, 11 and 12, although such action was not requested in plaintiff's motion for judgment or referred to in the trial court's judgment.

Having found Cross contributorily negligent by its answer to Special Issue No. 10, it seems abundantly clear from its 'thirty percent' answer to Special Issue No. 12 (which was conditioned on a finding of both plaintiff and defendant being guility of negligence which caused plaintiff's injuries) that the jury intended its answer to Special Issue No. 11 as a finding that the negligence of Cross was a proximate cause of this injuries. Otherwise there would have been no reason to have answered that his negligence was thirty percent of the total negligence found by them to have occurred.

The Court of Civil Appeals affirmed on the grounds that, in spite of any alleged errors which might have been made in the violation of Rule 272 and the trial court's handling of Special Issue No. 11, it properly disregarded Special Issues 10, 11 and 12, because Missouri Pacific had failed to discharge the burden of obtaining a proper series of issues concerning the alleged contributory negligence of Cross. The Court's reasoning is that 'the evidence was far from conclusive that drop-cords were available on the evening in question, thus making it necessary for appellant (Missouri Pacific) to submit an issue to the jury for them to decide' on that question. The thrust of this reasoning is, as now argued by Cross, that Special Issue No. 10 was objectionable because it assumed an ultimate disputed fact issue. There may be some merit to this reasoning if the issue and the court's charge had been properly and timely...