Southern Pac. Transp. Co. v. Allen
| Decision Date | 02 July 1975 |
| Docket Number | No. 1082,1082 |
| Citation | 525 S.W.2d 300 |
| Parties | SOUTHERN PACIFIC TRANSPORTATION COMPANY, Appellee, v. Charles L. ALLEN, Appellee. (14th Dist.) |
| Court | Texas Court of Appeals |
Richard B. Miller, Diana E. Marshall, Baker & Botts, Houston, for appellant.
Donn C. Fullenweider, Robert B. Wallis, Haynes & Fullenweider, Houston, for appellee.
This is an F.E.L.A. case.
Charles L. Allen (Allen or appellee) brought suit for injuries suffered in the course of his employment with Southern Pacific Transportation Company (Southern Pacific or appellant). The case is governed by the Federal Employers' Liability Act. 45 U.S.C. § 51 Et seq. (1972). Allen pled six specific acts or omissions, which he alleged to be negligence and a proximate cause of the incident. He also pled res ipsa loquitur. Southern Pacific pled eight acts or omissions of Allen, which it alleged to be negligence and a proximate cause of the incident in addition to a general denial.
Southern Pacific also filed a motion in limine which in part sought to prevent references or testimony concerning medical expenses or the amount thereof. Appellant contended in its motion that it would demonstrate, by proper evidence, that its payment of such expenses was not subject to the collateral source rule. This contention will be discussed later. The issues submitted and the answers of the jury were as follows:
1. Do you find from a preponderance of the evidence that, on the occasion in question, defendant, SOUTHERN PACIFIC TRANSPORTATION COMPANY:
(a)(1). failed to use such a device in attaching the steel pilings to the crane, as would have been used by a reasonably prudent person, under the same or similar circumstances?
If you have answered subpart (1) yes then answer subpart (2).
(2). do you find from a preponderance of the evidence that such failure, if any, was a proximate cause of CHARLES ALLEN'S injuries?
(b)(1). failed to use such a method of separating steel pilings as a reasonably prudent person would have used under same or similar circumstances?
If you have answered subpart (1) Yes then answer subpart (2).
(2). do you find from a preponderance of the evidence that such failure, if any, was a proximate cause of CHARLES ALLEN's injuries?
ANSWER ('Yes' or 'No'): _ _
(c) (1). failed to provide CHARLES L. ALLEN a reasonably safe place to work?
If you have answered subpart (1) yes then answer subpart (2).
(2) do you find from a preponderance of the evidence that such failure, if any, was a proximate cause of CHARLES ALLEN'S injuries?
ANSWER ('Yes' or 'No'): _ _
By the term 'a reasonably safe place to work' is meant such a place as an ordinary prudent person would have furnished under the same or similar circumstances.
You are instructed that defendant was under a duty to exercise ordinary care to furnish plaintiff a reasonably safe place in which to work, and this duty was a continuing one even though the work may have been fleeting or infrequent.
2. Do you find from a preponderance of the evidence that, on the occasion in question:
(a)(1). the plaintiff, Charles Allen, was instructed to signal the crane operator to move the pilings to the deep part of the ditch?
If you have answered subpart (1) 'Yes' then answer (2)
(2). the plaintiff, Charles Allen, failed to follow his instructions, if any, to move the pilings to the deep part of the ditch?
Answer ('Yes' or 'No'): _ _
If you have answered subpart (2) 'Yes', then answer subpart (3).
(3). Do you find from a preponderance of the evidence that such failure, if any, was negligent?
If you have answered subpart (3) 'Yes', then answer subpart (4).
(4) Do you find from a preponderance of the evidence that such failure, if any, was a proximate cause of the accident and injuries in question?
Answer ('Yes' or 'No'): _ _
(b)(1). The plaintiff, Charles Allen, failed to keep such a lookout for his own safety as would have been kept by an ordinarily prudent person in the same or similar circumstances?
If you have answered subpart (1) 'Yes', then answer subpart (2).
(2). Do you find from a preponderance of the evidence that such failure, if any, was a proximate cause of the accident and injuries in question?
(c)(1). The plaintiff, Charles Allen, was standing closer to the crane than a reasonably prudent person would have done under the same or similar circumstances?
If you have answered subpart (1) 'Yes', then answer Subpart (2).
(2) Do you find from a preponderance of the evidence that such failure, if any, was a proximate cause of the accident and injuries in question?
Answer ('Yes' or 'No'): _ _
If you have answered question(s) 2 or any of the subparts 'yes', then answer the following question.
3. What percentage of the negligence that caused the occurrence do you find from a preponderance of the evidence to be attributable to each of the parties found by you to have been negligent? The percentage of negligence attributable to a party is not necessarily measured by the number of acts or omissions found. Answer by stating the percentage opposite each name.
SOUTHERN PACIFIC TRANSPORTATION COMPANY and/or any of its agents and/or employees ............... 65%
CHARLES L. ALLEN .......... 35%
In answering this question, you should consider only the negligence of SOUTHERN PACIFIC TRANSPORTATION COMPANY and/or any of its agents and/or employees and the negligence of CHARLES L. ALLEN which you have found to be a proximate cause of the occurrence; therefore, the percentage should add up to 100%.
4. What sum of money, if any, if paid now in cash, do you find from a preponderance of the evidence would fairly and reasonably compensate CHARLES L. ALLEN for his injuries, if any, which you find from a preponderance of the evidence resulted from the occurrence in question?
Do not reduce the amount in your answer because of CHARLES L. ALLEN'S negligence, if any. Consider the following elements of damage, if any, and none other:
(a) physical pain and mental anguish
in the past. Answer in dollars and
cents, if any ............................ $10,000.00
-----------
(b) Physical pain and mental anguish
which, in reasonable probability, he
will suffer in the future. Answer in
dollars and cents, if any ................ $40,000.00
-----------
(c) Loss of earnings in the past
answer in dollars and cents, if any ...... $10,000.00
-----------
(d) Loss of earnings capacity which, in
reasonable probability, he will sustain
in the future. Answer in dollars
and cents, if any ........................ $103,000.00
-----------
TOTAL AMOUNT, in dollars and cents
if any: $163,000.00
-----------
Upon return of the verdict, and before it was accepted, Allen made a motion for judgment on the verdict. Southern Pacific, feeling that there was a conflict in the findings, requested the jury be sent back for further deliberations. Appellant later filed a motion for judgment on the verdict, and alternatively, moved for a mistrial. The trial court denied appellant's motions and entered judgment for Allen. No mention was made in the judgment concerning the disregarding of any issue, the award of damages was not reduced by the answer to Special Issue No. 3, and the medical expenses were not disallowed except as to $5,229.38, which was an unreimbursed payment by Southern Pacific. This appeal was then perfected.
Appellant has raised five points of error. The first four are based upon the jury's answers to Special Issues Numbers 2(b)(2) and 3 and contend that the trial court erred in refusing: to send the jury back; to enter judgment for Allen reduced by thirty-five percent; to declare a mistrial; or to grant a new trial. The fifth point of error concerns the failure to totally disallow the award of medical expenses.
Allen was an employee of the bridges and building division of appellant. On May 29, 1969, he and others were engaged in work on the White Oak Bayou Bridge. They were in the process of removing pilings from a cofferdam. It was necessary that the pilings be separated in order to be returned under a leasing agreement that Southern Pacific had with a supplier. A crane connected to a pile driver was attached to the pilings and they were dropped against the ground next to the bridge to effect the separation. Allen was walking toward the crane on the bridge engaging in conversation with one of the foremen on the bridge when someone shouted. The foreman and Allen were parallel to the pilings and on a straight line with the crane. The pilings came loose from the pile driver and Allen was struck down by the pilings which kicked up and landed on top of him. The foreman was not hit.
As appellant's first four points are interrelated, they will be discussed together. It is first argued that the trial court violated Rule 301, Texas Rules of Civil Procedure, by failing to enter a judgment which conformed to the vercict. Southern Pacific contends that absent any proper motion under the above cited Rule, the trial court is without jurisdiction to disregard Special Issue No. 3. Traders & General Ins. Co. v. Heath, 197 S.W.2d 130 ( . Appellee's reply is that his motion for judgment in open court included the following language:
. . . and, then, Your Honor, following the instructions in Special Issue No. 3, which is a defensive issue, which we say, on the basis of...
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