Rio Bravo Oil Co. v. Matthews

• Decision Date: 23 July 1929
• Docket Number: (No. 1872.)
• Parties: RIO BRAVO OIL CO. v. MATTHEWS.
• Court: Texas Court of Appeals

20 S.W.2d 342

RIO BRAVO OIL CO. v. MATTHEWS.

(No. 1872.)

Court of Civil Appeals of Texas. Beaumont.

July 23, 1929.

Appeal from District Court, Jefferson County; J. D. Campbell, Judge.

Suit by L. J. Matthews against the Rio Bravo Oil Company. Judgment for plaintiff, and defendant appeals. Reversed and remanded for a new trial.

Lamar Cecil and R. J. & C. T. Duff, all of Beaumont, for appellant.

Conley, Renfro & Keen, of Beaumont, for appellee.

WALKER, J.

On March 12, 1928, and subsequent and prior to that date, appellant held a mineral lease on that part of the right of way of the Texas & New Orleans Railroad Company, about 500 feet long, which crosses Spindletop oil field in Jefferson county, Texas. The lease extended only to that portion of the right of way not covered by the railroad track and roadbed. Appellant had no control or authority whatever over the railroad track, and its lease gave it no right of control. On the date mentioned appellant was operating this lease and had drilled a string of 25 or 30 wells on both sides of the track, within the limits of Spindletop oil field. The pictures offered in evidence of the wells drilled on the right of way show that none of the derrick floors encroached upon the roadbed. Well No. 54 was one of these wells, and appellee was an employee of appellant to work at this well. The railroad track furnished a convenient way by which appellant's employees could reach their work upon the right of way, but the track was not the only way. Appellant had constructed a plank road across the right of way, which could have been used by its employees in reaching the particular wells upon which each of them worked. A shelled road ran by the side of the right of way its full length across Spindletop oil field, and each of the employees could have traveled this road to a point opposite his well, and there entered upon appellant's premises and proceeded to his work. Had either of the two last-mentioned ways been used, the employees would not have used the track at all, except to cross it in order to reach the wells on the opposite side from the shelled road, or from the point where the road constructed by appellant entered its premises.

Notwithstanding these two last-mentioned ways, appellant had constructed approaches of plank from each of its wells to the railroad track. While it offered a different explanation for these approaches, the evidence raised the issue that the employees used them with the knowledge and consent of appellant as a way to go from the wells upon which they were working to the railroad track, and, having entered upon the railroad track, they used it, with the knowledge and consent of appellant, as a way to reach the premises where they were working and to leave these premises. Appellant did not urge nor ask nor insist nor require that its employees use the railroad track, or any particular way, to reach its premises. The evidence goes no further than to show that its employees were using the railroad track for this purpose with its knowledge and consent, and that they used the plank approaches from the wells to the railroad track with its knowledge and consent, and that it never made any objection to this use of the approaches, or to this use of the railroad track. Appellant had no control whatever over the trains being operated over the railroad track, and had no authority nor right to direct its employees to use the track, nor to restrain them from using it.

The railroad company had not given appellant's employees permission to use its track, nor had it objected to its use. The circumstances were sufficient to raise the issue that it was being used with the knowledge of the railroad company as a way, not only by the employees of appellant, but by other persons. Appellant had no contract, either express or implied, with its employees to furnish them a way to enter and depart from its premises. The choice of the way was wholly and absolutely optional with the employees, with no effort on its part to direct or control them in their choice. The most that can be said against appellant on the issue of choice of ways by its employees is that it knew and acquiesced in their use of the railroad track and roadbed, and of the approaches built by it from its wells to the railroad track, and never objected to this use, under circumstances from which an invitation may have been inferred.

The derrick floor of well No. 54 was built within 15 or 20 feet of the end of the crossties. The steam pump and steam engine used to operate this well were located between the derrick platform and the railroad track. The exhaust from the pump and steam engine was discharged directly across the railroad track, and created a cloud of steam so dense that one walking the railroad track could not see through it. This exhaust could have been, with reasonable care, controlled, so as not to be discharged, as it was, across the railroad track. Whether or not appellant had permission of the railroad company to discharge its exhaust across the track was not shown. The noise created by the operation and drilling of well No. 54 and the other wells upon the right of way was so great that one using the railroad track could not hear the noise of an approaching train, nor the ringing of the bell, but might have been able to hear the whistle. It was the custom of many of appellant's employees to ride out to their work in automobiles, and before entering upon their duties to go to a dressing room prepared by appellant upon its premises, and there change from their street clothes to their work clothes. This room was located in close proximity to the railroad track. After dressing for their work, it was the custom of many of the employees to leave the dressing room, walk from appellant's premises onto the railroad track, and walk down the railroad track to the particular plank approach that led from the railroad track to the well upon which they were working, and at that point leave the railroad track and follow the approach to the well.

On the date mentioned appellee was driven from his home to his work in an automobile, using for this purpose the above-mentioned public road. When he left the automobile, he went directly to the dressing room and there changed into his work clothes. Then he walked from the dressing room to the railroad track, got upon the railroad track, and walked down the track in a southerly direction for the purpose of reaching well No. 54. As he entered the steam exhaust above described which was so dense that he could not see through it, he was struck by a train being operated over the track, and was severely injured. At this point he was about 10 feet from the plank approach leading to well 54. This suit was by him against appellant for the damages suffered by reason of such injuries. He alleged that appellant was negligent in the following respects, each of which was submitted in due form to the jury as special issues and found in his favor, and each was found to be a proximate cause of the injuries sued for, to wit:

"(1) The failure of appellant to place a watchman on the premises near well No. 54 to warn its employees of the approach of trains.

"(2) The failure of appellant to place a signal lamp near well No. 54 to warn its employees of the approach of trains.

"(3) The failure of appellant to place a barricade along the railroad track on its premises, and on that part of the premises occupied by well No. 54, to warn and protect its employees from approaching trains.

"(4) The failure of appellant to place an electric bell on the part of the premises occupied by well No. 54 to warn its employees of the approach of trains.

"(5) The failure of appellant to place an electric signal on the premises occupied by well No. 54 to warn its employees of the approach of trains.

"(6) The failure to provide a way of leaving and entering the platform and well derrick of well No. 54 for its employees by the use of the railroad track.

"(7) The way provided by appellant for the use of its employees in leaving and entering well derrick No. 54 by the use of the railroad track.

"(8) (a) The discharge of the steam from the exhaust of the pumps and drilling machinery at well No. 54 in close proximity to the railroad track; (b) the discharge of the exhaust from the pump and engines of well No. 54 so as to obstruct the view of an approaching train by those using the railroad track; (c) the placing of the pumps so near the track that the steam from the exhaust obstructed appellee's view of the approaching train."

Appellant answered by general demurrer and specially that appellee's injuries "were solely and proximately brought about by reason of his own negligence." It was denied that it expected or wanted its employees to use the railroad track as a means of ingress to and egress from its premises, but provided for them a private way for this purpose, which it expected them to use. By using the railroad track, appellant alleged that appellee was guilty of negligence, which was the sole proximate cause of his injuries. It specially denied that its negligence, if any, was the proximate cause of appellant's injuries. Appellant did not plead the issue of contributory negligence.

It was agreed that appellant, though a nonsubscriber under the Workmen's Compensation Act (Rev. St. 1925, arts. 8306-8309), was entitled to its privileges and at its option could have been a subscriber. This issue was duly pleaded by appellee. He also pleaded that he was in performance of the duties of his employment at the time of his injuries. This issue was submitted to the jury and found in his favor. Answering special issues requested by appellant, the jury found that appellee was not guilty of negligence in walking down the railroad track at the time of his injuries. It was further found that the negligence of appellee, if any, was not the sole proximate cause of his injuries. The jury assessed appellee...