Payne v. Bannon

• Decision Date: 04 March 1922
• Docket Number: (No. 8626.)
• Citation: 238 S.W. 701
• Parties: PAYNE, Federal Agent, v. BANNON.
• Court: Texas Court of Appeals

238 S.W. 701

PAYNE, Federal Agent, v. BANNON.

(No. 8626.)

Court of Civil Appeals of Texas. Dallas.

March 4, 1922.

Appeal from District Court, Freestone County; A. M. Blackmon, Judge.

Action by L. P. Bannon against John Barton Payne, as Federal Agent. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

Boyd, Bell & Smith, of Teague, and Thompson, Barwise, Wharton & Hiner and F. B. Walker, all of Fort Worth, for appellant.

Williford & Geppert, of Teague, for appellee.

VAUGHAN, J.

This is the second appeal in this case. For opinion on former appeal, see Hines, Director General of Railroads, et al. v. Bannon (Tex. Civ. App.) 221 S. W. 684.

This is an appeal from a verdict and judgment in the sum of $2,500 rendered in favor of appellee on the 9th day of December, 1920, as damages for personal injuries claimed to have been sustained by appellee through negligence on the part of appellant, his servants and employees, on or about the 21st day of November, 1918.

Appellee, by his second amended original petition, bases his right to recover on the following alleged acts of negligence:

"That while engaged in carrying out the instructions of one Ray Hearne, and while attempting to raise a portable brace connected with said dirt spreader to an angle of 45 degrees, that it became the duty of said Ray Hearne, prior to the time of turning on the air to raise the wing of said dirt spreader, to see that no one was raising said portable brace and that no one was close to said brace. That it was customary for the one who had charge of said dirt spreader not to turn the air on for the purpose of raising the brace until every one was out of danger, and that the said Ray Hearne knew, or should have known, that plaintiff was in a place of danger, but that he turned the air on with a violent jerk, which caused the brace to descend in a violent manner, causing the brace to slip and injure appellee's hand.

"That it was the duty of the said Ray Hearne to give warning to plaintiff that he was going to turn air on, and that it was customary to give such warning in order that any one in close proximity to said brace or wing might be given an opportunity to protect himself, but that the said Ray Hearne refused to give plaintiff any warning that he was going to turn the air on, and that the said Ray Hearne knew, or could have known, that the plaintiff was in a position of danger and that turning the air on without giving warning would likely cause plaintiff injury."

Appellant answered on the merits as follows: General denial; pleading specially that at the time appellee was injured he and appellant were engaged in interstate commerce and that by reason thereof the case was one to be determined by the Federal Employers' Liability Act and amendments thereto (U. S. Comp. St. §§ 8657-8665); that if appellee received any injuries as alleged, that he assumed the risk thereof under the said Employers' Liability Act and the amendments thereto, and that at the time appellee was injured he had his hand at an improper place and at a place he was not required to have it in the discharge of his duties, and that the appellee knew thereof and knew the danger, and, as a result thereof, he assumed the risk of any injuries sustained to his hand. Also, that appellee was guilty of contributory negligence, which was the sole, direct, and proximate cause of his injuries and, therefore, under the Employers' Liability Act and the amendments thereto, he could not recover any sum; and, in the alternative, that if appellant was mistaken as to the appellee's negligence being the sole, direct, and proximate cause, then such negligence was a concurring cause, and that if it should be found that appellant was liable and that appellee had been injured, that then his damages should be diminished in proportion to his negligence as provided for in the Federal Employers' Liability Act; and that appellee was guilty of contributory negligence in having his hand at an improper place at the time he was injured.

It was admitted that at the time of the injury the parties were engaged in interstate commerce. Appellee was injured while in the performance of his duties under his employment assisting in the operation of a machine used to spread dirt upon the roadbed of the Trinity & Brazos Valley Railway Company. The spreader was located upon and attached to a flat car and had parts referred to in the pleadings and evidence as "wings," which extended from the car to the track by which the dirt was spread. The parts so used for spreading the dirt were lowered and raised while in use by means of a steel cable; the motive power being compressed air contained in a drum upon the car. There was a portable brace or arm attached to the floor of the car. When not in use, this lay upon the floor. When it was desired to operate the spreader, this brace would be raised and would extend outward from its base at an angle of about 45 degrees. The cable was attached to the part of the machine by which the dirt was spread and passed thence through the slot at the outer end of the brace, thence to pulleys upon a superstructure built upon the car, and thence to the motive power operated by the compressed air in the drum. In raising and lowering the part of the machine by which the dirt was spread, it was necessary that the portable brace or arm be raised and placed approximately at an angle of 45 degrees; otherwise, when the motive power was applied the brace would raise upward or suddenly descend. While operating the machine it was necessary to raise the "spreader" and, immediately preceding the accident, the brace had fallen. Appellee was assisting is replacing the brace in an upright position at an angle of 45 degrees, and, while so engaged, the air was applied by the operator and the brace suddenly, swiftly, and with great force descended, striking appellee's left hand, crushing and mangling same, as shown by the testimony of appellee.

Paragraph 8 of the court's instructions is questioned by first assignment of error as being on the weight of the evidence, in that it assumed that Ray Hearne did not give any notice or warning that he was going to turn the air on, same being an issuable fact; and by the third assignment said paragraph is further challenged for the reason that same assumes and instructs the jury to the effect that there was an absolute duty on the part of said Ray Hearne to give notice or warning that the air would be turned on and, therefore, was a charge on the weight of the evidence, it assuming an issuable fact.

Said paragraph 8 is as follows:

"Now, bearing in mind all the foregoing instructions, you are instructed that if you find and believe from a preponderance of the testimony in this case that the plaintiff, L. P. Bannon, while acting in the scope of his employment with the defendant, sustained injuries; and that such injuries were occasioned by the act of one Ray Hearne, who was then operating the air drum upon a dirt spreader, of the defendant in turning on the air in order to raise the wing of said dirt spreader, without notice or warning to the plaintiff that he was about so to do; and if you further believe from a preponderance of the testimony that this act upon the part of the said Ray Hearne constituted `negligence,' as that term has heretofore been explained to you; and that such negligence was the direct and proximate cause of plaintiff's injury, if any—then you are instructed to find for the plaintiff, and assess his damages in the manner hereinafter instructed."

The first assignment is directed to the following language of said paragraph:

"And that such injuries were occasioned by the act of one Ray Hearne, who was then operating the air drum upon the dirt spreader of the defendant, in turning on the air in order to raise the wing of said dirt spreader without notice or warning to the plaintiff that he was about so to do."

Tested by the following decisions: St. Louis & S. W. Ry. Co. of Tex. v. Smith (Tex. Civ. App.) 63 S. W. 1064; Texas Central Ry. Co. v. Waldie (Tex. Civ. App.) 101 S. W. 517; Texas Midland Ry. Co. v. Booth, 35 Tex. Civ. App. 322, 80 S. W. 121; and Stooksbury et al. v. Swan et al., 85 Tex. 563-567, 22 S. W. 963—said paragraph is subject to the objection in that it assumed that Ray Hearne turned the air on without notice or warning to the plaintiff that he was going to do so. This was a controverted issue, both by the pleadings and the evidence.

It is true the evidence in behalf of appellant supporting his theory of the issue is rather meager, yet, being sufficient to require the submission of such issue to the determination of the jury, it was error for the trial court to assume that such notice or warning was not given before turning the air on. This, being one of the vital issues, should have been submitted by appropriate instructions to the jury notwithstanding the apparent weak, probative effect of the evidence supporting appellant's contentions in reference thereto.

Third assignment is also addressed to that portion of said paragraph 8 above quoted on the ground that it assumes that it was Ray Hearne's duty to give notice or warning to appellee that he was going to turn the air on, when the same is an issuable fact, in that the evidence in the case did not disclose as a matter of law that it was the duty of said Hearne to give such notice or warning; there being at least a conflict in the evidence on said point and, therefore, on the weight of the evidence.

In the light of the following evidence, we must hold that the evidence in the case does not disclose as a matter of law that it was the duty of said Ray Hearne to give such notice or warning, to wit:

"Under the usual custom and in the course of our dealings some one would tell him (Hearne) we were ready, some one would tell him, `All right.' That would mean for every one to get out of the way and for him to raise the wings. The men that have...