Panhandle & S. F. Ry. Co. of Texas v. Sedberry

• Decision Date: 12 February 1932
• Docket Number: No. 908.,908.
• Citation: 46 S.W.2d 719
• Parties: PANHANDLE & S. F. RY. CO. OF TEXAS v. SEDBERRY.
• Court: Texas Court of Appeals

46 S.W.2d 719

PANHANDLE & S. F. RY. CO. OF TEXAS v. SEDBERRY.

No. 908.

Court of Civil Appeals of Texas. Eastland.

February 12, 1932.

Appeal from District Court, Nolan County; Fritz R. Smith, Judge.

Action by Belon Sedberry against the Panhandle & Santa Fé Railway Company of Texas. From a judgment for plaintiff, defendant appeals.

Reversed and remanded.

Douthit, Mays & Perkins, of Sweetwater, for appellant.

Cunningham & Oliver, of Abilene, for appellee.

LESLIE, J.

The plaintiff, Belon Sedberry, instituted this suit against Panhandle & Santa Fé Railway Company to recover damages occasioned him by the alleged negligence of another employee of the defendant. The trial was before the court and jury, and upon answers to special issues judgment was rendered in favor of the plaintiff, from which the defendant appeals.

In substance, the plaintiff's pleadings are that, on or about May 1, 1929, he was employed by the defendant as a laborer, and as such was engaged with other employees of the defendant in repairing and improving the defendant's railroad, which formed a part of a system of interstate railroads known as the Santa Fé system. That while such road was being so used, and while said laborers were extending and constructing a switch used and to be used in connection with the interstate commerce carried over said road, the plaintiff was injured by a cross-tie which he and another employee were, under the directions of the defendant's foreman, carrying to a place where it was to be used as a part of said switch. That the injury was done through the negligence of the other employee in permitting his end of the cross-tie to fall to the ground, the violence of which thereby caused the plaintiff to drop his end of the tie, with the result that the plaintiff's foot was crushed and injured by the tie when it hit the ground.

Among other defenses the defendant entered a general denial, specially denied that the injury ever occurred or was caused by a cross-tie falling thereon, pleaded contributory negligence, assumed risk, and denied that any other employee handled a cross-tie with him, or that he handled the end of the same so negligently as to cause his end to fall.

The allegations and the proof disclose that the work which the plaintiff was doing when injured was a part of the interstate commerce in which the defendant was engaged. In other words, the suit is properly brought under the Federal Employers' Liability Act (45 USCA §§ 51-59), the injury being attributed to the negligence of a co-employee engaged in that character of service. Federal Employers' Liability Act, U. S. Code, title 45, chap. 2, §§ 51-59 (45 USCA §§ 51-59); Geer v. St. L., S. F. & T. Ry. Co., 109 Tex. 36, 194 S. W. 939; Mondou v. New York, New Haven, Etc., Ry. Co. et al., 223 U. S. 1, 32 S. Ct. 169, 56 L. Ed. 327, 38 L. R. A. (N. S.) 44; Jones v. C. & O. Ry. Co., 149 Ky. 566, 149 S. W. 951.

The defendant's first contention is that the court erred in overruling its request for a peremptory instruction. This is on the ground that the evidence failed to show negligence on the part of the defendant in that no negligence was shown on the part of the plaintiff's employee, who, together with the plaintiff, was engaged in carrying a cross-tie when the latter dropped his end, thereby producing the injury complained of. Specifically, it is contended that the plaintiff's testimony merely disclosed an accident, the fact of which created no presumption of negligence on the part of the employer, the defendant. Patton v. T. & P. Ry. Co., 179 U. S. 658, 21 S. Ct. 275, 45 L. Ed. 361; Phillips v. Citizens National Bank et al. (Tex. Com. App.) 15 S.W.(2d) 550. The evidence in this respect is not entirely satisfactory. It is involved, and the members of this court are not fully agreed upon the effect to be given the same. Therefore, since the judgment must be reversed on other points, we refrain from discussing or passing on this proposition. On another trial the testimony may be more fully developed and therefore more specific on the fact of negligence.

The second assignment of error is to the effect that the court erred in overruling its motion to require the plaintiff to submit to an examination of the alleged injured foot by physicians selected by the defendant. The plaintiff's pleadings set forth serious injuries resulting to the foot by reason of the accident. In part he alleged: "That by reason of said cross-tie falling on plaintiff's foot, as aforesaid, the arch thereof was broken down and joints dislocated and bones broken, the same being the joints and bones of the arch of the foot and adjacent thereto, and of the ankle joint, and the tendons, ligaments, tissues and muscles of same were strained, bruised and broken, and the same were made sore and painful and caused the plaintiff great pain and anguish; and plaintiff was for weeks in the hospital and was for a long time unable to walk on said foot, and said condition has continued with more or less severity until the present time; * * * but after working and walking or standing on his said foot for a few days, his foot became swollen, sore and painful and he is compelled to quit using the same and this has prevented him from obtaining permanent employment and in engaging in any kind of work that he can perform for any considerable length of time."

The plaintiff testified fully concerning these injuries—the nature and location as well as the manner in which received. In response to questions by his counsel and in the presence and for the benefit of the jury during such examination, the plaintiff voluntarily removed his shoe and sock from the injured member and exhibited the same to the jury for observation and inspection. The jury observed and inspected the injured parts. In the light of this exhibition to the jury, the plaintiff's attorney questioned him and developed his case, disclosing the same to be one without complete recovery at the time of the trial.

Of course the injured foot was not visible to the jury without the voluntary removal of the shoe and sock, and at the conclusion of plaintiff's testimony, and after he had rested his case, the defendant made its motion to be permitted to have its physicians, who were accessible, to examine the alleged injured foot in order that they might have the benefit of such information on cross-examination and in developing its defense. To this the plaintiff objected, but indicated a readiness to agree to have the court appoint physicians to make the examination, provided they were not in the employment of the defendant, and provided they considered such physicians qualified and competent. Thereupon the court overruled the motion and refused to permit such examination by physicians of the defendant's selection.

The evidence as to the extent of the injury, the period of disability, and the continuing nature of such disability was conflicting, and each point was severely contested. An actual and voluntary exposure of the alleged injured part of the limb was made first by the plaintiff, who thus waived the inviolability of his person. Such step having been taken by him, the court erred in overruling the defendant's motion, but should have granted the defendant the right to have the injured member examined under proper circumstances by physicians of the defendant's selection. The right to do so has many times been upheld in similar cases in this state. Chicago, R. I. & T. Ry. Co. v. Langston, 19 Tex. Civ. App. 568, 47 S. W. 1027; Id., 19 Tex. Civ. App. 568, 48 S. W. 610; H. & T. C. Ry. Co. v. Anglin, 99 Tex. 349, 89 S. W. 966, 2 L. R. A. (N. S.) 386; Bower v. Lively (Tex. Civ. App.) 11 S.W.(2d) 556; G. H. & S. A. Ry. Co. v. Chojnacky (Tex. Civ. App.) 163 S. W. 1011.

Upon authority of these cases we sustain the second assignment of error. Neither the bill of exceptions nor the record presents anything in the nature of a waiver by the defendant of the rights claimed under this contention.

By assignments 3 and 4 the defendant asserts that the court erred in giving the general instruction in connection with the submission of the special issues on contributory negligence, the vice being the court thereby advised the jury of the legal effect of its answers to such issues. In its answer the defendant claimed that the negligence of the plaintiff in certain particulars was the sole proximate cause of his injuries, and, if not the sole proximate cause, at least, a proximate cause thereof. Certain of the issues and the jury's answers thereto are as follows:

"Special Issue No. 5: Was such injury to the plaintiff's foot caused by any negligent act on the part of the plaintiff? Answer yes or no. No.

"Special Issue No. 6: If you have answered the last preceding question to the effect that injury was caused by some negligent act of the plaintiff, then answer the following: Was such negligence on the part of the plaintiff, if any, the sole cause of such injury, if any? Answer yes or no.

"Special Issue No. 7: If you have answered the last preceding question `No', and only in that event, then answer the following question: Did such negligence, if any, on the part of the plaintiff contribute to the plaintiff's injuries, if any? Answer yes or no."

Special Issue No. 9 and the charge in connection therewith given by the court were as follows:

"Special Issue No. 9: If you have answered Special Issue No. 7 in the affirmative, and only in that event, then what amount in dollars and cents do you find the plaintiff was damaged by his own negligence, if any?

"In answering the last preceding issue you...