Roberts v. Texas & P. Ry. Co., 8030
| Decision Date | 02 November 1971 |
| Docket Number | No. 8030,8030 |
| Citation | 473 S.W.2d 567 |
| Parties | Benny Lee ROBERTS, Appellant, v. TEXAS & PACIFIC RAILWAY COMPANY, Appellee. |
| Court | Texas Court of Appeals |
Franklin Jones, Jr., Jones, Jones & Baldwin, Marshall, for appellant.
Mike Hatchell, Ramey, Brelsford, Flock, Devereux & Hutchins, Tyler, for appellee.
Appellant (Plaintiff) Bennie Roberts, filed an action for money damages against Appellee (Defendant), Texas & Pacific Railway Company, under the Federal Employers' Liability Act (Title 45 U.S.C.A. § 51 et seq.). The action arose out of injuries sustained by appellant Roberts on August 14, 1969, while moving a 'straightening device' inside one of appellee's railroad cars. The case was tried to a jury in the District Court of Harrison County, Seventy-first Judicial District, and the court submitted thirteen special issues to the jury for answering. After deliberating most of a day, the jury reported itself deadlocked. The trial judge asked the jury if they had answered any of the special issues, and their answer was in the affirmative. The court received and examined the court's charge and the jury's answers to those issues which the jury had completed. The court received the partial verdict over objections of plaintiff's counsel, and determined that the partial verdict had absolved the defendant of any negligence which played a part in plaintiff's injuries. The jury had answered that the conduct of appellant Roberts was the sole cause of his admitted injuries. The court then entered a judgment that plaintiff take nothing, and thereafter the plaintiff's amended motion for new trial was overruled. Appellant Roberts seeks review of the case in this court on two points of error.
The first point of error states that the jury's verdict is contrary to the overwhelming weight and preponderance of the evidence, and point No. 2 concerns whether or not the trial court or the court of civil appeals has authority to review the findings of the jury.
The facts show that appellant Roberts went to work for appellee as a carman's helper in August of 1947, and that his injuries occurred on August 14, 1969, while he was working in one of appellee's railroad cars. On August 12, 1969, appellant was furnished for the first time a 'straightening device' which was to be used in the straightening of bent portions of a box car. The aluminum device was about 10 feet tall, made in the shape of a 'T', with rollers on the bottom of a metal plate which supported the 'T' column. In the perpendicular column there was a hinging mechanism, which allowed the top half of the device to fold to the bottom. When the total column was in an upright position, the hinging mechanism was to be secured by placing the hasp on the top half of the column over the staple on the lower half of the column and inserting an object which would keep the hasp in place. To secure the hasp over the staple, another employee of appellee, Mr . Ford, placed a welding rod through the staple in such a manner as to keep the hasp in place. After the welding rod was in place on August 12, 1969, the straightening device was used to straighten one of appellee's box cars. Appellant Roberts had never worked with the device, nor had he been instructed in how to use it. The straightening device had been designed and manufactured by appellee in its railroad boiler shops in Marshall, and apparently was a new device. The device was left in an upright position at the end of the day on August 12th, with the welding rod in place. On August 13th the device was used, but appellant's duties required that he work out of town so that he was not around the device on that day. The next day, August 14th, appellant reported to the same box car for work, and welded in the top place of the car. Later a Mr. Clinkscales showed up and stated that he was ready for the device. Roberts at this point went to the office and inquired of Mr. Weber, a supervisor, as to what was to be done with the device. Weber replied that he intended to do away with the hinge and put it on a telescope and on a larger baseplate. Weber further stated that McIntosh had the fork truck, and that when he got through with it, that the device should be carried to the boiler shop in order to be worked upon. Appellant had not worked with the device on August 14th.
Upon receiving instructions from Mr. Weber to send the device to the boiler shops for modification, appellant Roberts returned to the car to take the device down. He told Ford to get upon the bench and that he, appellant, would roll the device over so that they could truck it slowly and lay it down. The device needed to be moved four or five feet toward Ford, so appellant started rolling the 'T' toward Ford. As he started moving the device, he was watching the floor, and Ford hollered that the base was kicking out from under the device. Appellant took one step towards Ford before the device came unhinged and struck appellant. Between the time that appellant had last used the straightening device and the morning of August 14th, the welding rod had been removed for some unknown reason. Appellant did not know who removed the welding rod, and did not know that it had been removed when he started to roll the device towards Ford.
After appellant's injury a new device was constructed which had a base plate twice as large as the one moved by appellant. The wheels were one-half the size of the ones on the device that injured appellant, and there was no hinge in the middle of the device.
Mr. LaRue, a carman for appellee, testified that he had used the device the day it was completed but the device did not have a means of securing the hasp when it was brought to him. He used a bolt and nut in the hasp, which he felt was safe because the bolt would not come out of the hasp and staple.
Luther Weber, an employee of appellee for 41 years, supervised the construction of the device that injured appellant. He said the device was designed to be lowered by being unhinged; that it weighed around 150 lbs.; and that he thought the device was safe with a welding rod securing the hasp and staple. He further testified that the new device was made with a larger platform, so that a man could stand on it and it would be less susceptible to turning over when standing in an upright position. He considered that the device which hurt appellant posed a danger of being knocked over if left unattended in the upright position, and he decided on a modification to the device thirty days before Roberts was hurt. Appellant never received any instructions on how to use the device from his supervisor, Luther Weber, although there is a rule fixing responsibility for the pursuit of safe work practices under supervisory personnel, such as Weber.
The jury found in its partial verdict that appellee railroad had not failed to furnish appellant with a safe place to work, nor had it failed to furnish him with a safe tool to perform his work. The jury further found that the failure of appellant Roberts to ascertain whether the hasp was securely fastened before attempting to roll the device which injured him was the sole proximate cause of his injuries.
The U.S. Supreme Court in Tiller v. Atlantic Coast Line Railroad Company, 318 U.S. 54, 63 S.Ct. 444, 87 L.Ed. 610 (Virginia, 1943), decided that Chapter 45 U.S.C.A., Sec. 51, and the 1939 Amendment to Sec. 54 of this chapter abolishing assumption of risk doctrine authorize comparison of negligence instead of barring the servant from all recovery because of contributory negligence, and they leave for practical purposes only the question of whether the master was negligent, and whether that negligence was the proximate cause of the injury.
Much is made of the fact that appellant failed to ascertain that the hasp was securely fastened before attempting to roll the device which injured him. However, 45 U.S.C.A. § 53 provides the following:
'In all actions hereafter brought against any such common carrier by railroad under or by virtue of any other provisions of this chapter to recover damages for personal injuries to an employee, or where such injuries have resulted in his death, the fact that the employee may have been guilty of contributory negligence shall not bar a recovery, but the damages shall be disminished by the jury in proportion to the amount of negligence attributable to such employee: Provided, That no such employee who may be injured or killed shall be held to have been guilty of contributory negligence in any case where the violation by such common carrier of any statute enacted for the safety of employees contributed to the injury or death of such employee.' (1908)
The general rule is that where the employee's injuries are due solely to his own negligence, and where there is nothing to extenuate his conduct or confuse his judgment and his duty is as clear as its performance is easy, and he knows not only the imminent danger of the situation but how it can be averted, then 45 U.S.C.A. § 53 has no application, and there is no ground for a comparison of negligence on the part of the employer and the employee. Chesapeake & Ohio Ry. Co. v. Richardson, 116 F.2d 860 (Cir.Ct.App. Ohio 1941), 313 U.S. 574, 61 S.Ct. 961, 85 L.Ed. 1531, certiorari denied.
An employee does not assume the risk of employment, because 45 U.S .C.A. § 54 (1908) provides that: 'In any action brought against any common carrier under or by virtue of any of the provisions of this chapter to recover damages for injuries to, or the death of, any of its employees, such employee shall not be held to have assumed the risks of his employment in any case where such injury or death resulted in whole or in part from the negligence of any of the officers, agents, or employees of such carrier; and no employee shall be held to have assumed the risks of his employment in any case where the violation by such common carrier of any statut...
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Texas and Pacific Railway Company v. Roberts
...trial court and remanded the cause holding that the findings of the jury were against the great weight and preponderance of the evidence. 473 S.W.2d 567. We reverse the judgment of the court of civil appeals and affirm the judgment of the trial The only two series of issues of primary negli......