St. Louis Southwestern Ry. Co. v. Greene

• Decision Date: 31 May 1977
• Docket Number: No. 8452,8452
• Citation: 552 S.W.2d 880
• Parties: ST. LOUIS SOUTHWESTERN RAILWAY COMPANY, Appellant, v. James F. GREENE, Appellee.
• Court: Texas Court of Appeals

Page 880

552 S.W.2d 880

ST. LOUIS SOUTHWESTERN RAILWAY COMPANY, Appellant, v. James F. GREENE, Appellee.

No. 8452.

Court of Civil Appeals of Texas, Texarkana.

May 31, 1977.

Rehearing Denied June 28, 1977.

Howard Waldrop, Atchley, Russell, Waldrop & Hlavinka, Texarkana, Traylor Russell, Russell & Rolston, Mount Pleasant, for appellant.

J. Donald Bowen, Houston, Tulley R. Florey, III, Mount Pleasant, for appellee.

CHADICK, Chief Justice.

This is a Federal Employers' Liability Act (45 U.S.C.A., Sec. 51, et seq) case. On the basis of jury findings of fact the trial court awarded James F. Greene a recovery of compensatory damages for personal injury received in the course of employment. The award of $250,000.00, together with costs, was against his employer, St. Louis Southwestern Railway Company. The railroad brings this appeal.

In response to special issues submitted under instructions that are not now questioned, the jury found that: (Special Issue 3) the railroad failed to furnish Mr. Greene with reasonably safe equipment with which to do his work; and (Special Issue 5) the railroad failed to properly maintain the "old main line" switch in the Mt. Pleasant yard.

The railroad undertakes to avoid these findings on the ground, as its first and second points of error are construed, that the record discloses a complete absence of probative facts supporting the jury's answer in each instance. The extent of negligence and the quantum of proof required to establish it in F.E.L.A. cases is said to have been reduced to the vanishing point. See Atlantic Coast Line Railroad Company v. Barrett, Fla.1958, 101 So.2d 37; W. L. Prosser, Law of Torts, pg. 560 (3rd ed. 1964). Sufficiency of evidence in an F.E.L.A. case is governed by federal standards. Rogers v. Missouri Pacific Railroad Co., 352 U.S. 500, 77 S.Ct. 443, 1 L.Ed.2d 493 (1957); Texas and Pacific Railway Company v. Roberts, 481 S.W.2d 798 (Tex.1972). However, in principle, the "no evidence" test in state practice cannot be distinguished from a similar test imposed by federal standards. Rogers v. Missouri Pacific Railroad Co., 352 U.S. 500, 77 S.Ct. 443, 1 L.Ed.2d 493 (1957); Texas and Pacific Railway Company v. Roberts, 481 S.W.2d 798 (Tex.1972). However, in principle, the "no evidence" test in state practice cannot be distinguished from a similar test imposed by federal standards. Both tests require valid findings of fact to be supported by more than speculation, conjecture and possibilities. Elgin, Joliet & Eastern Railway Co. v. Gibson, 355 U.S. 897, 78 S.Ct. 270, 2 L.Ed.2d 193 (1957); Calvert, "No Evidence" and "Insufficient Evidence", Points of Error, 38 Texas L.Rev. 361 (1960). The test in the state practice that has been declared inappropriate in F.E.L.A. cases by both federal and state decision is the state "insufficient evidence", including "great weight and preponderance", test. The proscribed Texas test permits Courts of Civil Appeals to weigh and determine reasonableness of evidence while the federal act allots that function exclusively to the trial jury.

The limit of appellate review in both state and federal courts is indicated by this extract from Tennant v. Peoria & Pekin Union Railroad Co., 321 U.S. 29, 64 S.Ct. 409, 88 L.Ed. 520 (1944):

"It is the jury, not the court, which is the fact-finding body. It weighs the contradictory evidence and inferences, judges the credibility of witnesses, receives expert instructions, and draws the ultimate conclusion as to the facts. The very essence of its function is to select from among conflicting inferences and conclusions that which it considers most reasonable. . . . That conclusion, whether it relates to negligence, causation or any other factual matter, cannot be ignored. Courts are not free to reweigh the evidence and set aside the jury verdict merely because the jury could have drawn different inferences or conclusions or because judges feel that other results are more reasonable."

In Rogers v. Missouri Pacific Railroad Co., supra, it is said appellate review is limited "to the single inquiry whether, with reason, the conclusion may be drawn that negligence of the employer played any part at all in the injury . . ."

From any viewpoint, the evidence in this case of the several elements of negligence is weak, but the weakest link in the chain of proof pertains to actual or constructive knowledge of the railroad that the equipment furnished Mr. Greene was not reasonably safe and that the switch was not adequately maintained. Simply stated, the facts show a switchman should be able to operate with one hand the switching lever of a properly maintained switch. Mr. Greene testified that he could not so operate the switch in question, that he was unable to operate it with both hands and finally employed a foot in forcing the lever into position. (He claimed his back was injured in this unusual episode.) Evidence, including pictures, showed that a metal strap had been affixed above and across the bridle rod of the switch. This strap served to keep the rod from bowing upward under pressure, and possibly other purposes. The strap so placed was unusual, being the only one known to a witness familiar with the railroad yards at Mt. Pleasant and Dallas. The bridle rod in its back and forth motion during a switching maneuver rubbed against the strap. This metal against metal frictional bind was visible in pictures which disclosed frictional wear on the bridle rod.

May reasonable men draw inferences from the fact that the switch lever did not respond to one hand operation and the fact that the bridle rod rubbed against the hold-down strap during operation that the switch was unsafe and maintenance thereof inadequate and had been so for a sufficient length of time for the railroad to have discovered and corrected such faults? Under the cases cited this court is compelled to answer in the affirmative. It was for the jury to weigh credibility of the witnesses, draw conclusions as to the facts proved and select the inferences it considered most reasonable. This Court is not free in an F.E.L.A. case to set aside a jury verdict merely because the inferences are weak or one inference appears more reasonable than another or that the same inference may support contrary conclusions. The railroad's first and second points of error are overruled.

The railroad claims the general damage award of $250,000.00 is erroneous because excessive. Mr. Greene sued for such amount and the jury agreed to the penny. Mr. Greene was twenty-five years of age at the time of the alleged injury and twenty-seven at the time of trial. His wage was $600.00 every two weeks prior to the claimed injury. In 1974 and 1975, during his absence from work, the brakeman immediately ahead of him on the seniority roster was paid $31,037.00 in wages and the brakeman immediately below received $32,463.00. Both brakemen averaged more than $1500.00 per month in 1975. The evidence touching upon damages and disability, as well as medical and medically related facts, is voluminous and a summary is not feasible.

Middle ground was left unoccupied in development of this case. The railroad completely discounts Mr. Greene's testimony and contends that as a result of testimony pertaining to...