Oaxaca v. Lowman
| Citation | 297 S.W.2d 729 |
| Decision Date | 21 November 1956 |
| Docket Number | No. 5211,5211 |
| Parties | Javier OAXACA, Appellant, v. R. D. LOWMAN, d/b/a R. D. Lowman, Contractor, Appellee. |
| Court | Court of Appeals of Texas. Court of Civil Appeals of Texas |
John J. Watts, W. R. Barnes, Odessa, for appellant.
Burges, Scott, Rasberry & Hulse, Schuyler B. Marshall, W. A. Thurmond, El Paso, for appellee Lowman.
Edwards, Belk, Hunter & Kerr, El Paso, for intervenor.
This is an appeal from a summary judgment rendered in favor of the defendant (appellee) by the Forty-first District Court of El Paso County, Texas. Appellant, Javier Oaxaca, had filed his action for damages against appellee-defendant, basing his action on injuries received while working as a plumber for one N. M. Canfield. Canfield had a sub-contract under the general contract of appellee to construct certain buildings at Fort Bliss, Texas. The Texas Employers' Insurance Association filed its petition as intermenor to recover the sum of $4,477.75, which represented the sum paid plaintiff (appellant) under workmen's compensation benefits. The facts are as follows:
Plaintiff, as employee of sub-contractor Canfield (who had a plumbing, heating and ventilating contract under the general contractor, R. D. Lowman), was engaged in replacing a joint of pipe in the building being constructed by the general contractor. In order to get up to where the pipe was being detached from the connection, plaintiff picked up a large, loose crate which had been left nearby by another sub-contractor. He, the plaintiff, turned this crate up on end, so that it was 8 feet high and about 18 inches thick, then climbed up a nearby ladder and stepped over onto the crate to receive the joint of pipe from an assistant, who was stationed up in the rafters, or beams. Plaintiff testified that he weighed 210 pounds, and the piece of pipe weighed approximately 50 pounds. While standing on this crate, which the plaintiff says was empty, and while handling the piece of pipe, the crate tipped over and he fell, sustaining injuries of which he complains.
Defendant filed his motion and affidavit for summary judgment. Depositions of plaintiff and defendant's superintendent were filed. The court granted this motion. After the summary judgment had been granted, plaintiff filed a motion for a new trial and attached an affidavit thereto.
Appellant charges error, stating that the trial court erred in finding and holding, as a matter of law, that there was no genuine issue, except as to the amount of damages, as to any material fact, and that defendant-appellee was entitled to judgment as a matter of law.
We think that appellant's point of error must be overruled. This being a summary judgment case, we are obliged to give the evidence and the inferences therefrom the most favorable aspect reasonably possible with reference to plaintiff's case, and discard contrary evidence and inferences. Even so, we feel that the reasoning and rulings found in Robert E. McKee, General Contractor, Inc., v. Patterson, 153 Tex. 517, 271 S.W.2d 391, controls the disposition of the cause before us.
Plaintiff urges that because the general contractor was required by his contract to keep the premises free and clear from rubbish and debris, that he was, therefore, liable to plaintiff because another subcontractor had left this crate on the premises. We find that the presence of the empty crate, even though it may have been left for two days or more, under the circumstances did not proximately cause the plaintiff's injuries. As is evident from the record and the depositions filed therein, the plaintiff preferred to pick up, move over into position, and use the crate, rather than use a ladder and a movable scaffold that were nearby and available and were there for the purpose of being used a needed. The proximate cause of plaintiff's injuries, then, was his deliberate and calculated rejection of the movable scaffold and putting to an unintended and unforeseeable use the empty crate. The record shows that plaintiff testified that it would have taken a little longer to take down and use the movable scaffold, so instead he picked up the empty crate and, after some discussion between himself and a workman named Puga, stationed up on the beams or rafters, decided that the crate...
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Nance Exploration Co. v. Texas Emp. Ins. Ass'n
...decisive. In this case, we choose to cite with approval the Fifth Circuit's opinion. Very recently this court, in Oaxaca v. Lowman, Tex.Civ.App., El Paso, 1956, 297 S.W.2d 729, held, in a situation very similar to this one and for reasons similar to those in this case, that the employer was......
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Katz v. Southwestern Scrap Materials Co.
...Hospital of Dallas, 348 S.W.2d 400, 403 (Tex.Civ.App., Dallas, 1961, ref. n.r.e.) and cases there cited; Oaxaca v. Lowman, 297 S.W.2d 729 (Tex .Civ.App., El Paso, 1956). Appellees make much of the fact that appellant testified that he does not know whether he jumped or fell from the ladder.......
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...of law the movant was entitled to judgment. Haley v. Nickels, Tex.Civ.App., 235 S.W.2d 683, 685, no writ history; Oaxaca v. Lowman, Tex.Civ.App., 297 S.W.2d 729, 732, error ref., N.R.E.; Green v. Smart, Tex.Civ.App., 333 S.W.2d 880, 885, no writ history; Hurley v. Knox, Tex.Civ.App., 244 S.......
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