Panhandle & S. F. Ry. Co. v. Hurst

• Decision Date: 25 April 1923
• Docket Number: (No. 2051.)
• Citation: 251 S.W. 538
• Parties: PANHANDLE & S. F. RY. CO. v. HURST et al.
• Court: Texas Court of Appeals

Page 538

251 S.W. 538

PANHANDLE & S. F. RY. CO. v. HURST et al.

(No. 2051.)

Court of Civil Appeals of Texas. Amarillo.

April 25, 1923.

Appeal from District Court, Lubbock County; W. R. Spencer, Judge.

Action by J. M. Hurst against the Panhandle & Santa Fé Railway Company, in which the Utilities Indemnity Exchange intervened, and in which the Texas Utilities Company was brought in as a defendant. From a judgment for plaintiff and for intervener and for the defendant interpleaded and against the railway company, the railway company appeals. Reversed and remanded.

Terry, Cavin & Mills, of Galveston, Wilson & Douglas, of Lubbock, and Madden, Trulove, Ryburn & Pipkin, of Amarillo, for appellant.

Geo. R. Bean, of Lubbock, for appellee Texas Utilities Co.

Bledsoe & Pharr, of Lubbock, for appellee Hurst.

HALL, C. J.

The appellee Hurst sued the appellant railway company in the district court of Lubbock county, to recover damages on account of certain alleged personal injuries which he received while working for the Texas Utilities Company, at Lubbock, on the 12th day of August, 1920. He alleged, in substance, that prior to the date of his injuries the defendant railway company had maintained a pumping station in Lubbock; that the station was situated in Pecan street near its intersection with North Second street; that immediately south of the pumphouse defendant railway company had constructed a pit into which the exhaust steam, hot water, and oil from the pump and engine were discharged; that said pit was full of boiling water when the engine was in use and for a long time after the pumping would cease; that the company had caused the pit to be covered with planks which were loose at the time of and prior to the accident, and which defendant had negligently allowed to remain loose and to become covered with grease and oil; that the said company, its agents, and employees knew that said pit was located in the street and was in a dangerous condition for any one passing over it; that while plaintiff was in the discharge of his duties as an employee of the Texas Utilities Company, and without knowledge of the condition of said pit, he stepped upon it, and, by reason of the planks being loose and greasy, one of them slipped, and plaintiff fell into the pit, which was at the time full of boiling water, resulting in scalding both of plaintiff's feet and legs below his knees. He prays for $300 doctor's bills, $100 drug bills, and $25,000 damages.

The defendant railway company answered, alleging that its pump exhaust pit were maintained in the usual and customary manner, upon property belonging to it and under its control; that the pumping plant was located upon what formerly had been a public street or streets, but that said streets had been duly and regularly closed by an ordinance enacted by the city council of Lubbock on the 9th day of June, 1909, and known as ordinance No. 16, and had ever since been claimed and occupied as part of the defendant's right of way, upon which it had paid taxes and used, free from any adverse claim whatever; that the use of said premises, or any part thereof, by the Texas Utilities Company and its employees, was wholly unauthorized; that plaintiff and the other employees of the utilities company were trespassers upon the premises; that some weeks prior to the date of the accident the utilities company had been granted temporary permission by the railway company to unload sand and gravel upon the right of way, but that no permission had ever been given the utilities company to use said premises for the purpose of mixing concrete, or the maintenance of a track for hauling such material, or for the performance of labor in connection with repairs, or improvements upon the utilities company's plant, as was being done by appellee Hurst at the time of the accident.

It is further alleged that the appellee was guilty of contributory negligence in failing to look where he was walking, and in looking behind instead of ahead while moving about in the performance of his work; that, if the top of said pit was in a dangerous condition, it was open and apparent to the appellee, who was in better position to discover such alleged defects than any one else; that he stepped upon the plank cover of the pit when it was possible for him to go around it, and in other ways to avoid stepping upon it; that in repairing their plant the utilities company had been moving timbers, heavy machinery, and materials and placed them upon and about the covering to said pit without the knowledge of the plaintiff, and that, if the planks upon the pit were loose, the condition resulted from the acts of plaintiff and his coemployees, and not through any negligence of the railway company; that, if the railway company is mistaken in alleging that plaintiff was a trespasser, then it alleges that plaintiff was a licensee and as such he accepted the premises in the condition in which he found them and assumed all the dangers and risks incident to his employment; that, if said ordinance No. 16 was not authorized by law, the railway company believed it to be valid, and so believing constructed its pumping plant at great cost upon said property, and which was necessary to the operation of defendant's road, more than 10 years prior to the date of the accident, where it has remained continuously ever since 1909; that that portion of said streets upon which its pumping plant was constructed was never opened, worked, or improved by the city but has been abandoned as a street and has never been used as such; that the Texas Utilities Company, for whom appellee was working at the time of his injury, was a subscribing member of the Texas Employers' Insurance Association, which was known to the appellee; that appellee has received compensation from said association on account of his injuries and by so accepting said compensation said association is now subrogated to all rights of the appellee, if any, on account of his injuries, and is therefore a necessary party to this suit; that before the institution of this suit plaintiff exercised his option to proceed against said insurance association under the Workmen's Compensation Law (Vernon's Sayles' Ann. Civ. St. 1914, arts. 5246h-5246zzzz), and was heretofore compensated by the Utilities Indemnity Exchange, a Missouri corporation, for the entire period covering plaintiff's alleged disability, the exact amount of compensation received from the Insurance Association and from the Indemnity Exchange being unknown to said railway company, but upon information and belief the railway company alleges it to be the sum of $425, and having proceeded to collect damages from such other parties, plaintiff is barred from again recovering against the defendant railway company; that the Texas Utilities Company, for whom appellee was working at the time of the accident, for its own convenience, had obtained the permission of defendant railway company to unload a car of sand on the right of way at a point near the pumping plant, and after unloading said sand, without the knowledge or consent of the Railway Company in proceeded to use the sand in mixing concrete on the right of way near where the sand was unloaded, for use in repairing the plant of said Texas Utilities Company, which adjoined the right of way of said railway company; that in the prosecution of said work the utilities company left only a narrow passageway for its employees to use in carrying on its work, and had thrown large pieces of timber upon the cover of said exhaust pit, which resulted in its dangerous condition.

The appellee filed a supplemental petition, urging certain exceptions, and which alleged specially that, if the railway company had a right to the use and occupancy of the public streets where the pit was maintained, it was nevertheless a place commonly and generally used by the public as a passageway in going from one part of the city to another, and that the public had acquired the right to so use it; that said premises were never at any time inclosed by the railway, but were permitted to remain open.

The Utilities Indemnity Exchange, a Missouri corporation, doing business within the state of Texas, under the Workmen's Compensation Law, intervened, alleging, in substance, that, at the time plaintiff received his injuries, the Texas Utilities Company had complied with all the requirements of the Texas Workmen's Compensation Law; that it had issued a policy of indemnity to the Texas Utilities Company, which was in force when this suit was filed, and that in compliance with the requirements of its said policy it had paid plaintiff, on account of his injuries, $15 per week for 13 weeks, aggregating $195; that it had paid medical, hospital, and drug bills to the amount of $230, and prayed that it be subrogated to the rights of appellee and recover whatever damages might be awarded him against the railway company, to the extent of $425. The Texas Utilities Company answered, alleging in substance that the railway company was not entitled to recover against it because, at the time of the injury, the Texas Utilities Company was a member of the Texas Employers' Insurance Association, under the Texas Employers' Liability Act. A trial to a jury resulted in a judgment in appellee's favor against the railway company, for the sum of $4,000 and interest, and in favor of the intervener, Utilities Indemnity Exchange, against the appellee in...