Stokes v. Burlington-Rock Island R. Co.

• Citation: 165 S.W.2d 229
• Decision Date: 08 October 1942
• Docket Number: No. 2433.,2433.
• Parties: STOKES et al. v. BURLINGTON-ROCK ISLAND R. CO. et al.
• Court: Texas Court of Appeals

Page 229

165 S.W.2d 229

STOKES et al. v. BURLINGTON-ROCK ISLAND R. CO. et al.

No. 2433.

Court of Civil Appeals of Texas. Waco.

October 8, 1942.

Rehearing Denied November 5, 1942.

Appeal from District Court, Limestone County; H. F. Kirby, Judge.

Suit by Mrs. Enid Reakes Stokes and the Texas Employers' Insurance Association against the Burlington-Rock Island Railroad Company, and others, to recover for the death of Charles Stokes, deceased. From an adverse judgment, the plaintiffs appeal.

Judgment affirmed.

Witt, Terrell, Lincoln, Jones & Riley, of Waco, and Edgar Cale, of Austin, for appellants.

Thompson & Barwise and Luther Hudson, all of Fort Worth, Bradley & Bradley, of Groesbeck, Orgain, Carroll & Bell, of Beaumont, Touchstone, Wight, Gormley & Touchstone, of Dallas, Lombardi, Robertson, Fligg & McLean, of Kansas City, Mo., L. W. Shepperd, of Groesbeck, Walker, Smith & Shannon, of Fort Worth, and Robertson, Leachman, Payne, Gardere & Lancaster, of Dallas, for appellees.

HALE, Justice.

Mrs. Enid Stokes and Texas Employers Insurance Association instituted this suit against Burlington-Rock Island Railroad Company, the Texas and Pacific Railway Company, Kansas City Southern Railway Company, Chicago Rock Island and Gulf Railway Company, Texas and New Orleans Railroad Company and Long-Bell Lumber Company (hereafter referred to respectively as B. R. I., T. P., K. C. S., C. R. I., T. & N. O., and Lumber Company), seeking damages on account of injuries resulting in the death of Charles Stokes. They alleged in substance that the K. C. S. owned a certain flat car which was designed for carrying poles and which it furnished to the other defendants while in a defective condition by reason of a broken or pulled staple on each side of the same; that the T. P. "and/or" the Lumber Company loaded the car at Long Leaf, or at Pleasant Hill, or at Shreveport in the State of Louisiana with telephone poles in a negligent manner in that (a) the loader inserted only four standards in the staples on each side of the car when it could and should have inserted more, (b) the standards so used were of young, brittle timber and small in diameter, whereas the loader could and should have used larger standards of hard, seasoned timber, and (c) after having so inserted such standards the loader braced the same from one side of the car to the other side by the use of wire; that the car of poles thus loaded was transported from Louisiana to Dallas by the T. P., thence to Teague by C. R. I., and to Coolidge, Texas, by B. R. I., where it was delivered to J. E. Morgan & Sons; that while the deceased was acting in the course of his employment with Morgan & Sons in unloading the poles from the car on August 19, 1937, he sustained the injuries resulting in his death in the following manner, viz: he weakened the standards on the east or down side of the car by cutting them partially through at the base, then went on top of the load of poles at the south end and near the west side of the car while another employee of Morgan & Sons went on top of the load at the north end of the car and, at a given prearranged signal from Stokes, each man then cut the top wire bracing the standards at both the north and south end of the car, expecting the weight of the poles to break the weakened standards on the east and roll of their own weight to the east, but when the wires were thus cut simultaneously the standards unexpectedly broke on both sides of the car and the load fell to the west as well as to the east and Stokes, being caught in the poles falling to the west, was killed. They further alleged specific acts of negligence on the part of the defendants in the use of the car by reason of such defective condition, in loading and transporting the same while loaded in such unsafe and insecure manner, and in failing to make reasonable inspections of the car and load, each of which specific acts of negligence they alleged to have been a proximate cause of the injuries and damages complained of.

The transcript does not contain any pleading on behalf of C. R. I. or T. & N. O. The other defendants filed separate answers, each consisting, among other things, of general and special denials and pleas of contributory negligence on the part of the deceased, based upon his conduct in the method and manner which he adopted in unloading the car, it being alleged that he was at such time foreman for Morgan & Sons and had charge, supervision and control of the unloading operations.

Immediately after the plaintiffs had introduced their evidence upon the trial, each of the defendants, other than C. R. I. and T. & N. O., presented its separate motion for an instructed verdict and each motion having been sustained, the court peremptorily instructed the jury to return their verdict in favor of the defendants, which was accordingly done. Thereupon the court rendered judgment, reciting therein that the plaintiffs had dismissed their suit as to C. R. I. and T. & N. O., and decreeing that plaintiffs take nothing as against the other defendants. From this judgment the plaintiffs have appealed upon the contention that the trial court erred in directing the verdict against them.

The evidence in the case was sufficient to sustain findings that the Lumber Company shipped the car of poles from Shreveport, Louisiana, to Morgan & Sons at Coolidge, Texas, by way of T. P. to Dallas, C. R. I. to Teague and B. R. I. to Coolidge, where the car was delivered to the consignee for unloading, and while the deceased and other employees of Morgan & Sons were engaged in unloading the car, a fatal accident happened in substantially the manner as alleged by plaintiffs. The evidence further showed that the deceased was foreman for Morgan & Sons over the other employees engaged in the unloading of the car, that Mrs. Stokes sustained damages on account of the death of her husband and that the Insurance Association paid compensation to her by reason thereof under the terms of the Texas Employers Liability Act.

It is well settled, however, that the mere happening of an accident constitutes no legal ground for the recovery of damages unless the right of recovery be grounded upon the doctrine of res ipsa loquitur under such circumstances as to raise a presumption of negligence. Since plaintiffs alleged specific acts of negligence on the part of each defendant to have been the proximate cause of the damages complained of, and since the evidence showed...