Sharpe v. Safway Scaffolds Co. of Houston, Inc., A14-84-079CV

• Decision Date: 10 January 1985
• Docket Number: No. A14-84-079CV,A14-84-079CV
• Citation: 687 S.W.2d 386
• Parties: Prod.Liab.Rep. (CCH) P 10,730 Charles Michael SHARPE, et al., Appellants, v. SAFWAY SCAFFOLDS COMPANY OF HOUSTON, INC., Appellee. (14th Dist.)
• Court: Texas Court of Appeals

Page 386

687 S.W.2d 386

Prod.Liab.Rep. (CCH) P 10,730

Charles Michael SHARPE, et al., Appellants, v. SAFWAY SCAFFOLDS COMPANY OF HOUSTON, INC., Appellee.

No. A14-84-079CV.

Court of Appeals of Texas Houston (14th Dist.).

Jan. 10, 1985.

Rehearing Denied Feb. 7, 1985.

John H. Holloway, Houston, for appellants.

Marc A. Sheiness, Hirch, Glover, Robinson & Sheiness, Willard Tinsley, Tinsley, Barrelli & Tessmer, B. Lee Ware, Jr., W. Mac Gann, Gann, Fried & Edwards, Houston, for appellee.

Before J. CURTISS BROWN, C.J., and CANNON and DRAUGHN, JJ.

OPINION

J. CURTISS BROWN, Chief Justice.

This is an appeal from a judgment that Charles Michael Sharpe (Appellant, plaintiff, or Sharpe) take nothing in a personal injury suit. Appellant attacks the legal and factual sufficiency of the evidence to support the jury's responses to the special issues, alleges the trial court allowed improper cross-examination of a witness, argues there was an improper submission of special issues, and contends the trial court erred in failing to grant a mistrial due to conduct by the jury. We affirm.

Appellant was an apprentice electrician who was injured when the movable scaffolding he was working upon turned over. The scaffolding turned over while Appellant and his helper were moving it by pulling, from the top of the scaffolding, the rafters of the ceiling. Sharpe brought suit against Safway Scaffolds Company of Houston, Inc. (Safway or appellee) and Fairbanks Company (Fairbanks). Appellee leased the scaffolding to Appellant's employer, and Fairbanks was the manufacturer of the wheels on the movable scaffolding. Appellee brought a third party action for contribution or indemnity against Safway Steel Products, the manufacturer of the scaffolding. Before trial, Appellant settled with Fairbanks and Safway Steel Products.

The jury failed to find that the scaffolding as it was being used was defective or that the rental of the equipment as a movable scaffold without warning rendered the equipment defective. The jury also found that Appellant's negligence was the proximate cause of the accident and that "O" was the amount of damages suffered by Sharpe. Appellant moved for a mistrial due to a note sent by the jury during deliberations. The motion for mistrial was denied.

Appellant raises sixteen points of error. In the first point of error, he argues that as a matter of law the evidence established that the scaffolding was defective. In point of error two, Sharpe claims that the great weight and preponderance of the evidence established that the scaffolding was defective.

Appellant had the burden of proof on the issue of whether the scaffolding was defective. The failure of the jury to find a fact, upon which the proponent has the burden of proof, need not be supported by affirmative evidence. Traylor v. Goulding, 497 S.W.2d 944 (Tex.1973); Payne v. Snyder, 661 S.W.2d 134 (Tex.App.--Amarillo 1983, writ ref'd n.r.e.); Walters v. Wright, 649 S.W.2d 649 (Tex.App.--Texarkana 1982, writ ref'd n.r.e.). In reviewing point of error one, this court must consider all of the evidence, and if Appellant established conclusively and as a matter of law that the scaffold was defective, the point will be sustained. If there is some competent evidence in the record which precludes the finding that the evidence conclusively established that the scaffolding was defective, the first point of error must be overruled. Payne v. Snyder, 661 S.W.2d at 144; O'Connor, Evidence Points on Appeal, 37 Tex.B.J. 839 (1974); Calvert, "No Evidence" and "Insufficient Evidence" Points of Error, 38 Texas L.Rev. 361 (1960). Looking at the entire record, we cannot say that Appellant conclusively established that the scaffolding was defective. The testimony from Appellee's witnesses directly contradicted Appellant's evidence. In view of the conflicting evidence, it cannot be said that Appellant established as a matter of law that the movable scaffolding was defective. Point of error one is overruled.

In reviewing the second point of error, this court must review all of the evidence in the record to determine if the jury's failure to find that the movable scaffolding was defective was so against the great weight and preponderance of the evidence so as to be unjust. In re King's Estate, 150 Tex. 662, 244 S.W.2d 660 (1951); Southwestern Bell Telephone Co v. Baker, 650 S.W.2d 467 (Tex.App.--Houston [14th Dist.] 1983, writ ref'd n.r.e.).

Appellant's expert witness, Norman Sachnik, testified that he had tested a movable scaffolding and concluded that it was a dangerous device which was unreasonably dangerous for its intended use. Sachnik concluded that the scaffolding tipped over due to the wheels rotating sideways and acting as a brake. Sachnik believed that the only act of the employees that contributed to the accident was that the employees put the movable scaffolding into motion. Appellant introduced into evidence a video tape which detailed Sachnik's tests. Sachnik also testified that another possible cause of the accident was that one of the support braces on the scaffolding came loose and caused the scaffolding to become unstable. Appellant and Leslie Moriarity, Appellant's helper at the time of the accident, testified as to their conduct before the accident and the condition of the scaffolding and general work area.

Appellee introduced expert testimony of Kornel Nagy. Nagy also conducted tests on a similar movable scaffolding. Nagy concluded that the most likely cause of the accident was that the employees were pulling the scaffolding along from the rafters of the building and that the wheels or a wheel hit a piece of debris on the floor. There was some evidence of debris in the area at the time of the accident. Appellee also introduced evidence which contested some of the methods used by Sachnik in his tests. There were disputes over whether the scaffolding tested by Sachnik was of the same height as the one involved in the accident, whether the amount of weight on the top of the scaffolding was accurate, and whether the means Sachnik used to pull the scaffolding in his tests contributed to the tipping over of the scaffolding. William Gilbreath, an employee of Appellee, testified that the scaffolding can turn over but disagreed with Sachnik's theory of what caused the accident. Gilbreath testified that Appellee was unaware that workers were moving the scaffolding by pulling it from the rafters instead of pushing it from the ground.

In view of the conflicting testimony, a fact issue was created for the jury. Appellant has failed to show that the jury's failure to find that the movable scaffolding was defective was against the great weight and preponderance of the evidence. Point of error two is overruled.

In point of error three, Sharpe argues that the uncontroverted evidence established as a matter of law that the scaffolding was defective due to the lack of adequate warnings. The fourth point of error is that the great weight and preponderance of the evidence established that the renting of the scaffolding without adequate warnings as to its inherent dangers rendered the equipment defective. Again Appellant had the burden of proof on this issue. The evidence on this issue was also conflicting.

Safway introduced testimony which raised the issue of whether any further warning was necessary. There was also evidence of the actions by Appellee to give warnings to its customers. However, Appellee did not claim that Appellant was actually told not to ride the scaffolding while it was being moved. We cannot agree that the Appellant has shown that the uncontroverted evidence established as a matter of law that the scaffolding was defective due to the lack of adequate warnings. Point of error three is overruled.

Sachnik testified that based upon the inherent dangers of the movable scaffolding and the fact that ordinary persons might not be aware of the risk involved, a specific warning was required. Appellant introduced evidence of various warnings that would have given notice of the risks involved and the practicality of those warnings.

Safway disputed whether any further warnings were required. Gilbreath testified that Appellee was unaware of the method Appellant used to move the scaffolding. Gilbreath detailed Appellee's efforts to give notice to its customers. Gilbreath testified that a warning, "Do not ride moving scaffolds," was included on lease invoices, that notices were put up on the job sites, that warning cards were passed out to workmen, and that when possible the company would meet with customers and their employees to discuss safety matters. However, Gilbreath could not produce any of the documents containing warnings. Bill Golding, Nagy, and Gilbreath criticized Sachnik's suggested warnings as being too wordy and distracting. Nagy believed that the warning, "do not ride rolling towers," was a sufficient warning under all the circumstances. In view of the conflicting evidence, Sharpe has failed to show that the jury's failure to find the movable scaffolding defective due to lack of adequate warnings was against the great weight and preponderance of the evidence. The fourth point of error is overruled.

Appellant's fifth point of error is that there was no evidence to support the finding that Sharpe was negligent and his negligence was the proximate cause of the accident. In the next point of error, Appellant attacks the factual sufficiency of the evidence to support the same finding. In reviewing a "no evidence" point of error, this court will consider only the evidence and inferences tending to support the finding and disregard all evidence and inferences to the contrary. Garza v. Alviar, 395 S.W.2d 821 (Tex.1965); Jack Roach Ford v. De Urdanavia, 659 S.W.2d 725 (Tex.App.--Houston [14th Dist.] 1983, no writ); Retzlaff v. Ground, 640 S.W.2d 676 (Tex.App.--Houston [14th Dist.] 1982, no writ).

There is some evidence which supports the jury's finding...