Rorie v. City of Galveston

Citation456 S.W.2d 421,1972 A.M.C. 425
Decision Date10 June 1970
Docket NumberNo. 205,205
PartiesC. V. RORIE, Jr., et al., Appellants, v. CITY OF GALVESTON, Appellee. . Houston (14th Dist.)
CourtCourt of Appeals of Texas. Court of Civil Appeals of Texas

Arthur J. Mandell, Mandell & Wright, Dixie Smith, Fulbright, Crooker, Freeman, Bates & Jaworski, Theodore Goller, Eikel & Goller, Houston, Bryan F. Williams, Jr., Royston, Rayzor & Cook, Galveston, for appellants.

V. W. McLeod, McLeod, Alexander, Powel & Apffel, Galveston, for appellee.

SAM D. JOHNSON, Justice.

C. V. Rorie, Jr., a longshoreman, brought this suit to recover damages for personal injuries sustained while working on board the ship SS Armagh in Galveston, Texas, on September 6, 1960. He named as defendants the City of Galveston, hereinafter sometimes called City, and Avenue Shipping Co., Ltd., and Trinder, Anderson & Co., Ltd., the owners and operators of the ship SS Armagh, hereinafter collectively called shipowner.

Strachan Shipping Company was the stevedoring company and Rorie's employer. Strachan was impleaded by the cross-action of the City. Subsequently, the shipowner also filed a cross-action against Strachan seeking indemnity for any sums it might be required to pay to Rorie as a consequence of his suit. Strachan counterclaimed against both defendants. Strachan's workmen's compensation insurance carrier, Texas Employers' Insurance Association, intervened to recover the compensation and medical payments made to Rorie as a consequence of his injuries on the ship.

Rorie's suit was dismissed for want of prosecution by the District Court on Jury 12, 1966. This judgment was reversed by the Court of Civil Appeals for the First Supreme Judicial District of Texas, and the case remanded to the District Court for trial on the merits. See: Rorie v. Avenue Shipping Co., Ltd., 414 S.W.2d 948, ref., n.r.e .

After remand the case proceeded to trial before a jury in 1968. The jury's verdict found the City's employee at fault for Rorie's damages and granted Rorie recovery of damages in the sum of $75,000 from the City. It exonerated the shipowner from any liability to Rorie for unseaworthiness or negligence. It further exonerated Strachan from any liability on the cross-actions of the City and the shipowner.

The trial court granted the motion of the City for judgment notwithstanding the verdict and entered a final judgment that Rorie take nothing from the defendants below, the City and the shipowner, and that the shipowner recover from Strachan the sum of $7,500.00 for attorney's fees and disbursements incurred in the successful defense of Rorie's suit. All other relief was denied.

With the exception of the City, all parties have appealed.

It is to be noted that judgment in the instant case was signed and entered on August 26, 1968, and that two days thereafter a letter was sent to the official court reporter of the trial court requesting preparation of the statements of facts. By affidavit of the court reporter it appears that such work was not even begun until September 15, 1969, over twelve months after trial. The statement of facts was filed in this Court on January 6, 1970, over a year and four months following the initial request therefor. During this period this Court has been presented with no less than eight sworn motions by the court reporter requesting extensions of time. Such delay on the part of the court reporter (solely responsible to the judge of the trial court) is a major reason that this case comes before this Court for determination almost ten years after the date of the accident.

The SS Armagh, a deep-sea cargo vessel on board which the appellant, C. V. Rorie, Jr., was injured, was docked in the Port of Galveston for the purpose of discharging a cargo of bulk ore. Strachan, a stevedoring company with offices in Galveston, was engaged by the shipowner to provide the necessary longshoremen and equipment to discharge the Armagh's cargo.

To discharge the bulk ore, Strachan arranged for the use of a land-based mobile railway crane sometimes hereafter referred to as the Brown Hoist crane, which was owned by the City. The Brown Hoist crane operated on railroad tracks on the wharf adjacent to the pier where the SS Armagh was moored. The evidence is undisputed that the City furnished the Brown Hoist crane, its operator, Frank McPeters, and a helper, Herman Ermis. McPeters, the operator of the Brown Hoist crane at the time of the accident, was shown to be deceased at the time of trial. A supervisor employed by the City, Johnnie Johnston, was also present on the wharf.

The five longshoremen in Rorie's gang were discharging a cargo of ore from the ship. Rorie was assigned to work in the hold. W. L. Patterson was the signalman. Herman Weber, the gang foreman who died prior to commencement of this trial, operated the ship's winch. The remaining two longshoremen were assigned to work on the rail cars on the dock.

At the time of the accident ore was being discharged from the lower hold of the No. 5 hatch. Running lengthway with the ship down the center of this particular hold was a stanchion or metal structure about four feet wide and seven feet high. This structure extended from the engine room to the stern of the ship to cover the vessel's propellor shaft.

In normal procedure the ore was scooped out of the ship's hold by a clamshell bucket attached by cables to the Brown Hoist crane and emptied into rail cars positioned on the track on the pier adjacent to the ship. After emptying, the operator of the Brown Hoist crane would swing the empty clamshell bucket back over the ship's open hatchway and upon receipt of a signal from the flagman, Patterson, would lower it onto the hold alongside the stanchion which protects the propellor shaft. On the flagman's signal the operator of the Brown Hoist crane would stop the clamshell bucket about one to two feet above the deck. The Brown Hoist crane operator would then, again on the flagman's signal, move the clamshell bucket to the nearest permissible proximity of the ore to be scooped up.

To drag the clamshell bucket under the overhead deck to the ore piled against the side of the ship a cable had been rigged from the ship's winch through two blocks. These blocks were positioned so that the clamshell bucket, after it had been stopped above the deck in the hatchway, could be pulled into position by use of the cable attached to the ship's winch. Rorie, who was working on the top of the ore in the lower hold, would take a hook attached to the end of the cable which ran from the ship's winch and carry it to the edge of the hatchway and attach it to the clamshell bucket. Then, upon a signal from the signalman, Patterson, the operator of the ship's winch would pull the clamshell bucket back into the wing of the hold and on top of the cargo. The bucket would then, again on signal from the signalman, be opened by the operator of the Brown Hoist crane and dropped on the ore. The hook attached to the cable from the ship's winch would next be detached from the clamshell bucket by Rorie. The operator of the shore-based Brown Hoist crane would then on signal from Patterson pull the clamshell bucket toward the center of the vessel, into the hatchway, and this movement of the open bucket would fill it as it moved through the ore. Finally, after the clamshell bucket had cleared and reached the open hatchway, the Brown Hoist crane operator would, on signal from the signalman, hoist the bucket out of the hold and empty the ore into the railway car on the dock.

The record indicates that immediately prior to Rorie's injury the Brown Hoist crane operator swung the clamshell bucket over the main deck hatchway of the No. 5 hold, and in response to Patterson's signal, the clamshell bucket was being lowered into the hold. There are two versions of what next transpired. Patterson, the signalman, testified that the clamshell bucket was lowered completely into the lower hold and was stopped in its usual position two or three feet above the deck. Then without any signal on his part, the bucket suddenly and rapidly swung backward toward the stern of the ship and then forward where it hit the stanchion ladder and the stanchion in the middle of the hold, then ricocheted and hit the cargo ore, then ricocheted again hitting and pinning Rorie under it. This version of the accident is at variance with that testified to by Rorie, the plaintiff. It was Rorie's testimony that he was back in the wing of the hold looking in the direction the clamshell bucket was to descend. He testified the first thing he saw was 'the bucket hit the ladder and upright center-line stanchion just below the 'tween-deck, and fire just flew.' The plaintiff's testimony was quite clear that the clamshell bucket had not fully descended into the lower hold where he was stationed and that if it had he would have seen it. Rorie proceeded to testify that it was while the clam shell bucket was being lowered down into the hold that it struck the stanchion ladder and ricocheted on to him causing his injuries. According to Rorie's testimony this occurred suddenly and unexpectantly. Under either version it appears that at the time Rorie was injured neither the cable from the ship's winch nor any other ship's equipment was attached to the clamshell bucket or in any manner involved in the accident. It further appears that at the time the clamshell bucket hit Rorie he was climbing on a sweat batten (a timber which protects the metal skin of the ship) trying to get out of the way. It does not appear to be disputed but that the operation of the Brown Hoist crane caused serious and permanent injuries to Rorie.

The jury found that McPeters, the Brown Hoist crane operator, struck the clamshell bucket against the ladder in the No. 5 lower hold (special issue no. 11), that such act was negligence (special issue no. 12), and a proximate cause of Rorie's injuries (special issue no. 13). The jury also...

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2 cases
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    • United States
    • Supreme Court of Texas
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