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

• Citation: 364 S.W.2d 433
• Decision Date: 07 January 1963
• Docket Number: No. 7172,7172
• Court: Texas Court of Appeals
• Parties: PANHANDLE & SANTA FE RAILWAY COMPANY, Appellant, v. R. D. WALKER and Texas Employers' Insurance Association, Appellees.

Page 433

364 S.W.2d 433

PANHANDLE & SANTA FE RAILWAY COMPANY, Appellant, v. R. D. WALKER and Texas Employers' Insurance Association, Appellees.

No. 7172.

Court of Civil Appeals of Texas, Amarillo.

Jan. 7, 1963.

Rehearing Denied Feb. 4, 1963.

Lewis Jeffrey, Simpson, Adkins, Fullingim & Hankins, Amarillo, McLeod, Mills, Shirley & Alexander, Galveston, for appellant.

Merchant, Fitzjarrald, Poole & Merchant, Underwood, Wilson, Sutton, Heare & Berry, Amarillo, for appellees.

CHAPMAN, Justice.

This opinion is in lieu of our opinion announced on November 12, 1962.

This is an appeal by Panhandle & Santa Fe Railway Company from a jury verdict in favor of R. D. Walker and intervenor, Texas Employers' Insurance Association. Mr. Walker will hereinafter be referred to by his name, or as appellee, and the Association as intervenor. Panhandle & Santa Fe Railway Company will be variously referred to as Santa Fe, appellant, or the railway company.

On September 7, 1960, appellee was and had been since March of that year working as a materials checker for Kellogg Construction Company. The latter will be hereinafter referred to as Kellogg or the construction company.

Kellogg was engaged in construction work for Phillips Petroleum Company. Large quantities of materials for construction were shipped in to Kellogg by rail. The railroad cars with Kellogg construction materials were parked on the tracks inside the enclosure of Phillips Refinery at Phillips, Texas. On the occasion of appellee's alleged injury, he was checking materials for Kellogg in a boxcar on the tracks mentioned when Santa Fe coupled its engine onto the east boxcar of a group of five connecting cars. Appellee was working in one of those cars. Kellogg had requested Santa Fe to move one of the cars to another track and had not advised appellant there was anyone working in one of them. Appellee alleged that while checking materials in the boxcar '* * * defendant, with great force and violence, drove one of its trains into the car in which the plaintiff was working throwing him from a stack of material to the floor of said car causing him serious and permanent bodily injuries to his head, neck, left shoulder, and upper portion of his back.' He alleged he had suffered intense pain and disability since September 7, 1960, and would continue to suffer pain and disability for an indefinite time, even throught the balance of his lifetime. He asked for one hundred twenty-five thousand dollars ($125,000) damages and the jury gave him fifteen thousand dollars ($15,000).

Prior to the filing of the instant case, appellee had settled a workman's compensation case with intervenor, insurance carrier for Kellogg, for one thousand five hundred sixty dollars ($1,560) plus the hospital bill and some of the medical bills in the amount of nine hundred thirty-nine dollars and seventy cents ($939.70) growing out of the same alleged injury. The record shows on page 79 of the Statement of Facts that appellee at the time of the trial still owed one of the treating doctors approximately twelve hundred dollars ($1,200), none of which had been paid by intervenor. ¹ Judgment was rendered for appellee against Santa Fe for twelve thousand five hundred dollars and thirty cents ($12,500.30) and for intervenor for two thousand four hundred ninety-nine dollars and seventy cents ($2,499.70). It is from such judgment appeal is perfected upon twelve points of error.

In its first point appellant attacks the action of the trial court in allowing, over its objections, appellee's counsel, while interrogating witnesses, to require them to answer (1) whether it or its employees furnished blue flags or other safety equipment to plaintiff; (2) whether they furnished blue flags or other safety equipment to other Kellogg employees; (3) whether it gave any safety instructions or cautions to Kellogg employees; (4) in overruling its motion to withdraw all such evidence; (5) in failing to give defendant's requested charge No. 1 limiting the extent of defendant's duty; and (6) 'overruling Amended Motion for New Trial complaining of such overrulings.'

Appellee insists the point is multifarious in that it deals with rulings made separately during the examination of a number of witnesses, with the refusal of the court to give a requested instruction limiting appellant's liability, and also injects in its argument under the point complaints with respect to argument of Walker's counsel. Though the point is probably multifarious ² we are able to determine that appellant is complaining of questions asked by appellee's counsel and evidence allowed by the court concerning whether appellant furnished flags or other safety devices to Kellogg or its employees working in the railroad cars. Since this court has always been very liberal in writing on multifarious issues where we can tell from the wording of the point what the aggrieved party is complaining about, we shall discuss the point fully.

It should be noted that appellant pleaded negligence of appellee in failing to place a flag or some other safety device to warn of his presence in the car and alleged negligence in the failure of Kellogg to furnish its employees flags to place on the cars to warn of the presence of workmen. It then alleged such negligence of Kellogg was the sole proximate cause of the injuries suffered by appellee. The jury found Kellogg was negligent in failing to furnish appellee flags of some character to place on the end of the car in which he was working to warn of his presence but found that such negligence was not the sole proximate cause of his injuries.

Appellee alleged three grounds of negligence against appellant, (1) in failing to keep a proper lookout, (2) in failing to warn appellee it was going to strike the boxcar, and (3) in striking the car without ascertaining if anyone was in it.

In our previous opinions we stated that the oral argument was not brought forward in the record. It now develops that the record of such argument had been mistakenly sent to the Supreme Court in another record. Prior to this court's knowledge of that fact, we had overruled per curiam the Motion for Rehearing but had not announced such action. Since the record of argument has been returned, we have read it carefully and have determined that no objections were made to the argument during the trial of the case whereby the court would have had an opportunity to instruct the jury not to consider it if he had considered it improper. Additionally, we believe from this record as a whole that the argument was harmless under Rule 434. We must now consider the ruling of the court concerning questions by appellees' counsel to a number of witnesses and their answers thereto as to whether Santa Fe furnished flags or other safety devices to appellee to make known his presence in the boxcar.

In the first place recovery does not turn in any particular upon a finding of Santa Fe negligence in the matter of blue flags. Secondly, whether the testimony was admissible was a matter of relevancy, and it seems clearly to have been made relevant and material both by appellant's allegations and by the testimony it offered. Santa Fe alleged Walker was negligent in not placing a blue flag to make known his presence in the car and questioned another Kellogg witness working in the same boxcar if he used any character of flag or warning device to warn of his presence in the car. The fact of negligence was to be determined by applying the standard of a prudent person. The circumstances that no one--Kellogg, Santa Fe, or anyone else--ever suggested to him the use of a blue flag seems worthy to be considered by the jury in support of Walker's contention that he was not negligent in that regard. In 23 T.J.2d 178, Sec. 124, Evidence, it has been textually stated:

'There is no precise or universal test for determining whether proffered evidence is relevant and material. As a general rule, however, it may properly be said that evidence will be deemed to be relevant and material if it tends to prove or disprove any fact in issue, or if it is capable of affording any reasonable presumption or inference as to the principle matter in dispute. In other words, there must be some logical connection, either directly or inferentially, between the evidence or facts offered and the facts in issue that will make the former relevant to the latter.'

The general principle just enunciated has been applied a number of times by our Supreme Court. Pittman v. Baladez, 158 Tex 372, 312 S.W.2d 210; Weaver v. Benson, 152 Tex. 50, 254 S.W.2d 95; Dallas Railway & Terminal Company v. Oehler, 156 Tex. 488, 296 S.W.2d 757.

We agree the trial court should not have permitted counsel to lecture one of the witnesses about not telling him certain acts were not their duty or the railway company's duty, but under this record we do not consider the conduct constitutes reversible error.

As stated in our original opinion, the cases cited by appellant on the alleged errors asserted in this point are not applicable to the facts of our case. For example, a number of them are cases in which the injury was attributable to the action or omission of either the plaintiff or his employer and not in the act or omission of the defendant. ³

The court simply held in that line of cases that a defendant which has not brought about the injury is under no duty to protect against his own unsafe practices. In the instant case it was the defendant who brought about the alleged injury. Furthermore, the Bell case cited in footnote 3 as a 'writ refused' case and quoted from in appellant's brief was not a case with that writ history at all but was refused for want of merit on the ground that plaintiff Bell was defendant's employee. Bell v. Humble Oil & Refining Co., 142 Tex. 645, 181 S.W.2d 569.

Additionally, whether there existed a duty of Santa Fe on the blue flag question depended upon the railway company's ability to have...