Port Terminal R. Ass'n v. Ross

• Decision Date: 21 March 1956
• Docket Number: No. A-5325,A-5325
• Citation: 155 Tex. 447,289 S.W.2d 220
• Parties: PORT TERMINAL RAILROAD ASSOCIATION, Petitioner, v. Oliver ROSS, Respondent.
• Court: Texas Supreme Court

Page 220

289 S.W.2d 220

155 Tex. 447

PORT TERMINAL RAILROAD ASSOCIATION, Petitioner, v. Oliver ROSS, Respondent.

No. A-5325.

Supreme Court of Texas.

March 21, 1956.

Rehearing Denied April 25, 1956.

Andrews, Kurth, Campbell & Bradley, Raymond A. Cook and C. F. Morse, Houston, for petitioner.

Mandell & Wright and Ben N. Ramey, Houston, for respondent.

WALKER, Justice.

This is an action to recover damages under the Federal Employers' Liability Act. ¹ Judgment in favor of the plaintiff, which the trial court entered on the verdict of the jury, has been affirmed by the Court of Civil Appeals. 278 S.W.2d 277. Defendant contends that there is no evidence: (1) to support the jury findings of primary negligence and proximate cause, or (2) to justify the inclusion of the elements of future pain and suffering and future loss of earning capacity in the issue on damages. We have concluded that the verdict of the jury is supported by the evidence, and that the judgment of the Court of Civil Appeals should be affirmed.

Plaintiff was employed as a section hand in defendant's railroad yard. On Saturday and Wednesday mornings of each week, he and another workman, Graham, were expected to replenish the oil in the switch lamps throughout the yard. The kerosene used for this purpose was stored in a 55-gallon metal drum. Oil was drawn or poured from the drum into a can, from which it was poured into the lamps. When plaintiff began doing this work, the drum was kept on its side in a metal rack, and oil was drawn therefrom by means of a spigot. About two months before plaintiff was injured, the spigot was broken; a new spigot was requisitioned but was not obtained.

In the absence of a workable spigot, the drum was placed on one end on the ground, and the foreman instructed the workmen to tilt the drum and pour oil therefrom into the can. The rack remained in the tool house where the oil drum was stored. Throughout the period of some two months after the spigot was broken, plaintiff and Graham were together whenever oil was poured from the drum. On each of these occasions, they tilted the drum together and poured the oil therefrom without mishap. On the Saturday morning in question, plaintiff went to the tool house to make preparations for filling the lamps. Graham was working on a switch about three hundred feet from the house, and the foreman was with the remainder of the gang some four hundred yards farther down the track. Without trying to ascertain Graham's whereabouts or to obtain help from anyone, plaintiff attempted to tilt the drum alone and strained his back. Another employee, Washington, who had been sent by the foreman to obtain bolts from the junk pile near the tool house, saw the plaintiff with the drum tilted, realized that he was in a strain, and assisted in restoring the drum to anupright position. Graham, having heard a noise like someone calling him, left his work on the switch and went to the tool house, arriving in time to see plaintiff and Washington placing the drum up straight.

In response to special issues, the jury found that the plaintiff's injuries were proximately caused by the primary negligence of defendant in failing to place the drum on a rack, and by the contributory negligence of plaintiff in tilting the drum without seeking or asking for assistance, that the defendant failed to assign a sufficient number of men to help plaintiff tilt the drum but that such failure was not negligence, that plaintiff sustained damages in the amount of $35,000, and that the negligence of the plaintiff contributed to his damages to the extent of twenty-five percent. Judgment was entered for the plaintiff in the amount of $26,250 (75% of $35,000).

Defendant contends that there is no evidence that it failed to use ordinary care to provide a reasonably safe way to obtain oil. The evidence shows that the drum was very heavy, that it was difficult for two men to tilt and handle the same while pouring oil therefrom, that one of the two men had the weight on him practically all of the time, that the drum might tilt to either side when it contained oil, that a large part of the oil was spilled in the operation, that the drum did not have any handholds or other devices which would enable the workmen to maintain a firm grip thereon, that the outside of the drum was 'wet' with grease and oil, and that one could not keep a good hold on it. In the light of this evidence, we cannot say as a matter of law that a reasonably prudent person would not have foreseen the possibility of injury resulting from loss of control of the drum by the two workmen. The evidence also shows that it is possible to keep the drum on the rack and obtain oil therefrom without a spigot, and that this was done at times after the spigot was broken. And the risks incident to tilting the drum would have been eliminated if it had been kept on a rack.

While the carrier is not the insurer of its employees and is not liable for risks which cannot be eliminated through the exercise of reasonable care, it is under the duty to furnish its employees a reasonably safe method of work. And if the method of work prescribed by the employer entails foreseeable risks to its employees which would be eliminated if another readily available and previously used method were adopted, the question of whether the employer was negligent in failing to adopt the latter method is one of fact for the jury.

The question of causation is somewhat more difficult. As defendant points out, the tilting method of obtaining oil from the drum had prevailed for about two months without an accident of any kind. The uncontradicted evidence establishes that there were other workmen within reach of plaintiff's call who would have come to help him if he had called them. Plaintiff testified that there would have been no accident if Washington or Graham had helped him, but this is an expression of opinion which cannot be given conclusive effect as a judicial admission. We agree with defendant, however, that the finding of the jury that the accident in question was proximately caused by plaintiff's negligence in tilting the drum without seeking assistance, necessarily includes the auxiliary finding that such accident would not have occurred if plaintiff had called for assistance.

Defendant contends that as a matter of law the failure to place the drum on a rack could not have been a proximate cause of the accident, because the defendant could not reasonably foresee that the plaintiff would fail to seek or ask for assistance from the other workmen who were readily available to him. It argues that whether or not a master is at fault, he is not liable to an employee who injures himself doing something which has never been done before, which has not been directed by the employer, which is not necessary to perform his job, and which is, therefore, wholly unforeseeable. We shall assume that defendant could not reasonably foresee the plaintiff's failure to seek assistance.

Prosser states that if the defendant's act or omission was a substantial factor in bringing about the result, it will be regarded as a cause in fact, and that ordinarily it will be such a substantial factor if the result would not have occurred without it. Prosser, Law of Torts, p. 321, sec. 46. In this sense, the defendant's negligence was a substantial factor in causing the plaintiff's injuries, which would not have been sustained if the drum had been placed on the rack. It has also been pointed out repeatedly that for the defendant's negligence to be regarded as a proximate cause of the plaintiff's injury, it is not necessary that the exact nature of the injury or the precise manner of its infliction should reasonably have been foreseen. It is sufficient that the defendant should reasonably have anticipated consequences or an injury of the general nature of that which ensued. See Hopson v. Gulf Oil Corp., 150 Tex. 1, 237 S.W.2d 352, and authorities cited therein.

Under the provisions of the Federal Employers' Liability Act, the carrier is liable for injuries to an employee 'resulting in whole or in part' from its negligence. Contributory negligence of the employee does not bar a recovery but results simply in the diminution of damages in proportion to the amount of negligence attributable to the employee. After considering the two alternate methods of work, drawing oil from the drum placed on a rack and manual tilting of the drum by two men, the jury apparently concluded that the latter method is not reasonably safe, and found: (1) that a reasonably prudent person would have adopted the former method, and (2) that the accident in question would not have occurred if the plaintiff had exercised due care in performing the work by the unsafe method. We do not regard these findings as necessarily inconsistent. The jury could have reasoned that if the plaintiff had obtained the help of another workman, he would not have been injured from the effort of tilting the drum, but that the method was nevertheless unsafe because either or both of the workmen might be injured if they lost control of the drum.

As indicated above, we are not prepared to hold as a matter of law that the defendant could not reasonably have anticipated some injury to one or both of the two workmen while they were attempting to pour oil from the manually tilted drum. Plaintiff was injured while performing in a negligent manner the very operation which the jury apparently decided was unreasonably hazardous and which the exercise of ordinary care would have eliminated. We think that this must be held to meet the foreseeability requirements of the proximate cause test. The fact that plaintiff negligently and unforeseeably departed from the customary practice of using assistance in tilting the drum does not break the causal connection between defendant's negligence and plaintiff's injuries, and affords no basis for saying as a matter of law that the defendant...