Najera v. Great Atlantic & Pacific Tea Co.

• Decision Date: 07 January 1948
• Docket Number: No. A-1349.,A-1349.
• Citation: 207 S.W.2d 365
• Parties: NAJERA v. GREAT ATLANTIC & PACIFIC TEA CO.
• Court: Texas Supreme Court

207 S.W.2d 365

NAJERA v. GREAT ATLANTIC & PACIFIC TEA CO.

No. A-1349.

Supreme Court of Texas.

January 7, 1948.

Rehearing Denied February 4, 1948.

Error to Court of Civil Appeals of Fifth Supreme Judicial District.

Suit by Leopoldo Najera against the Great Atlantic & Pacific Tea Company to recover damages for personal injuries sustained by plaintiff while in defendant's employ. Judgment for plaintiff was reversed and rendered by Court of Civil Appeals, 203 S.W.2d 577, and plaintiff brings error.

Judgment of Court of Civil Appeals reversed and cause remanded to district court for a new trial.

James K. Byers, of Dallas, for plaintiff in error.

John N. Touchstone, of Dallas, for defendant in error.

SIMPSON, Justice.

Leopoldo Najera sued The Great Atlantic & Pacific Tea Company for $2,500 in damages for an injury he sustained while working in a baking plant operated by the Company in Dallas. The trial court entered judgment for Najera upon a jury verdict for $500, but the Dallas Court of Civil Appeals concluded as a matter of law that the mishap causing the injury was not, from the Company's viewpoint, reasonably foreseeable, and, moreover, was due solely to Najera's own negligence. Accordingly, it reversed the judgment of the district court and rendered one in favor of the Company. 203 S.W.2d 577. The jury found in substance that one Raley, a fellow servant, had negligently opened a door with which Najera collided and was injured, and that this negligence proximately caused the injury. It also found that Najera failed to keep a proper lookout for his own safety but that this failure was not the sole proximate cause of his injury, and that the occurrence was not an unavoidable accident.

The Company had three or more employees at the time but was not a subscriber under the Texas Workmen's Compensation Law, Vernon's Ann.Civ.St. art. 8306 et seq., and for these reasons was deprived of the defenses of contributory negligence, assumed risk, and negligence of a fellow employee. Still, it was necessary, if Najera was to recover, for him to prove that the Company's servant, acting within the scope of his employment, was negligent and that this negligence proximately resulted in the injury. Art. 8306, § 1, R.S.; Western Union Telegraph Co. v. Coker, Tex.Sup., 204 S.W.2d 977. We have reached the conclusion that the jury's findings in Najera's favor are not, as a matter of law, without support in the evidence, and that the Court of Civil Appeals fell into error in reversing and rendering the judgment of the district court.

When Najera was injured, he was walking backward pulling a truck or rack on wheels, loaded with bread pans, and his right hand struck an iron latch on a door which Raley had just opened. This door led off of a narrow hallway barely wide enough for the truck to get through and into what was called a "proof box," which was kept warm enough to make the dough rise before it went into the ovens. The empty pans were first greased, then filled with dough, and afterwards trucked into the proof box. It was Raley's duty to open the doors into this box so the truck, when loaded with dough, could enter, and it is inferable that it was also his duty to keep the doors closed at other times to maintain a proper temperature in the proof room. Now Raley testified that the door with which Najera collided had been open "just for the matter of a short time" before the injury occurred; that Najera was walking backward pulling a truck loaded with filled dough pans ready to go into the proof box, and that he had opened the door to let Najera get the truck inside. If this was the case, Raley properly opened the door to let Najera in. But Najera testified that the pans on his truck were empty at the time, in which event the truck would have had no business in the...