Texas City Transp. Co. v. Winters

• Decision Date: 09 June 1920
• Docket Number: (No. 145-3083.)
• Citation: Texas City Transp. Co. v. Winters, 222 S.W. 541 (Tex. 1920)
• Parties: TEXAS CITY TRANSP. CO. v. WINTERS.
• Court: Texas Supreme Court

222 S.W. 541

TEXAS CITY TRANSP. CO. v. WINTERS.

(No. 145-3083.)

Commission of Appeals of Texas, Section B.

June 9, 1920.

Error to Court of Civil Appeals of First Supreme Judicial District.

Action by C. E. Winters against the Texas City Transportation Company. Judgment for plaintiff was affirmed (193 S. W. 366), and defendant brings error. Reversed and remanded, as recommended by the Commission of Appeals.

W. T. Armstrong, of Galveston, and Eugene A. Wilson, of Brownwood, for plaintiff in error.

Frank S. Anderson and Aubrey Fuller, both of Galveston, for defendant in error.

McCLENDON, J.

C. E. Winters, the plaintiff, while in the employ of the Texas City Transportation Company, the defendant, as a carpenter foreman, superintending at the time the construction of concrete forms in an excavation at Texas City, received personal injuries, caused by a caving in of a portion of one of the sides of the excavation. Plaintiff brought this suit against defendant to recover compensatory damages for said injuries. The Court of Civil Appeals affirmed a judgment of the trial court in favor of plaintiff, rendered upon a verdict upon special issues. 193 S. W. 366.

Defendant presents in this court seven assignments of error. The last two of these relate to the action of the trial court in refusing to strike out certain testimony as hearsay, and the refusal to permit defendant to introduce certain portions of plaintiff's pleadings. These assignments do not present questions of substantive law, and are not, therefore, within the jurisdiction of the Supreme Court.

The other five assignments, eliminating duplication, relate to the refusal of three special issues requested by defendant and objection to the first special issue submitted to the jury, which special issues were in substance:

(1) Defendant's refused special issue No. 14, calling for a finding whether the duty to see to the safety of the walls of the excavation rested upon the plaintiff.

(2) Defendant's refused special issue No. 16, calling for a finding whether the duty rested upon defendant to place in the excavation material for curbing the walls; and, if so, whether defendant failed in that duty; and, if so, whether plaintiff by the exercise of ordinary care could have obtained the material.

(3) Defendant's refused special issue No. 13, calling for a finding whether the failure of C. A. Stevens, defendant's engineer, to warn plaintiff of the dangerous condition of the walls was the proximate cause of plaintiff's injury, in the event the jury should find that Stevens knew of such dangerous condition.

(4) The trial court's special issue No. 1 submitted to the jury reading: "Did the defendant exercise reasonable care to furnish plaintiff a safe place to work?"

The Court of Civil Appeals held that defendant's special issues Nos. 14 and 16 were properly refused, because there was no evidence of probative force to support them. With regard to defendant's special issue numbered 13 above, the court held that they were unable to determine whether the requested issue related to contributory negligence of plaintiff or to the proximate cause of his injuries, but that in either event no error was presented, because the case was within the Employers' Liability Act, which abolished the fellow servant defense, and because the court in issue No. 9 properly submitted the issue of proximate cause.

The objection urged to special issue No. 1 was that the whole matter of negligence was condensed into one issue, whereas a number of issues were tendered by the pleadings. This contention was overruled, upon the ground that the only issue presented by the pleadings and supported by the evidence was whether defendant had negligently failed to furnish plaintiff a safe place to work, and that all other issues were incidental thereto and evidentiary. It will thus be seen that the questions here presented are more or less interrelated, and in order to determine the correctness of the holdings of the Court of Civil Appeals a clear understanding of the issues presented by the pleadings is essential.

It may be stated at the outset that, although the general duty of furnishing plaintiff a safe place in which to work rested upon the defendant, yet if, under the terms of plaintiff's employment as a carpenter foreman, he was charged with the duty of seeing that the walls of the excavation were safe for himself and those working under him, recovery cannot be had by him, based upon his own dereliction in the performance of that duty. The pleadings of both parties are very fully set out in the opinion of the Court of Civil Appeals. A careful analysis of them leads to the conclusion that the following issues were clearly presented thereby: First, whether the duty to see to the safety of the walls of the excavation rested upon plaintiff; second, whether defendant negligently failed to furnish plaintiff a safe place to work; third, whether the duty rested upon defendant to furnish plaintiff with material to brace the walls, and it failed in that duty; and, fourth, whether defendant's engineer in charge knew of the...