Texas Employers' Ins. Ass'n v. Thomas

• Court: Texas Court of Appeals
• Writing for the Court: Jackson
• Citation: Texas Employers' Ins. Ass'n v. Thomas, 283 S.W. 240 (Tex. App. 1926)
• Decision Date: 24 March 1926
• Docket Number: (No. 2641.)
• Parties: TEXAS EMPLOYERS' INS. ASS'N v. THOMAS.

283 S.W. 240

TEXAS EMPLOYERS' INS. ASS'N v. THOMAS.

(No. 2641.)

Court of Civil Appeals of Texas. Amarillo.

March 24, 1926.

Rehearing Denied April 28, 1926.

Appeal from District Court, Wichita County; H. R. Wilson, Judge.

Proceedings under the Workmen's Compensation Act by Henry E. Thomas, claimant, opposed by the Texas Pipe Line Company, employer, and the Texas Employers' Insurance Association, insurer, to set aside decision of Industrial Accident Board denying claimant compensation. Judgment for claimant, and insurer appeals. Affirmed.

Lawther, Pope, Leachman & Lawther, of Dallas, for appellant.

Grindstaff & Zellers, of Weatherford, for appellee.

JACKSON, J.

Appellee, Henry E. Thomas, instituted this suit in the district court of Wichita county, Tex., to set aside the final decision of the Industrial Accident Board of Texas, which denied him compensation, and to recover against appellant, Texas Employers' Insurance Association, for personal injuries received while employed by the Texas Pipe Line Company, which carried compensation insurance with appellant for its employees.

Appellee alleges: That the Texas Pipe Line Company, a corporation, owned and operated a pipe line plant a mile west of the town of Electra, which consisted of 140 acres of land, pump station, warehouses, tank farm, machine shops, and various other machinery, at which it employed from 50 to 75 men. That there were no residences in the vicinity of the company's plant, and the employees lived in Electra and were compelled in going to and from their work to walk along the north side of the Vernon highway, from which the plant was separated by the tracks and right of way of the Fort Worth & Denver City Railway Company. That there were but two entrances to the plant, one used solely for trucks and automobiles, the other used exclusively for employees who walked to and from their work. The point of entrance used by pedestrian employees was located on the south side of the Vernon highway directly north of the pumphouse and extended southward across the right of way of the railroad onto the premises of the pipe line company where employees on foot reached a graveled or paved path leading to the houses on the company's premises, where employees were requested to report daily for work. That this footpath was the sole means of access for pedestrian employees and was the route intended and contemplated by the contract of employment, and appellee had been instructed by the foreman of said pipe line company to use said path and not to walk on the grass on the premises. That a bridge had been constructed on each side of the railroad track by the pipe line company as a part of said path. That appellee and the other employees of said company were paid for their time, from 7 a. m. until 5 p. m., but did not begin their active duties at the plant until 7:30 a. m., and were allowed the 30 minutes from 7 a. m. until 7:30 a. m. of the company's time to get to their work. That appellee had been employed by the company for about two years, and on November 6, 1923, he and other employees, proceeding to their work in the usual and customary way, leaving home at 7 a. m., caught a ride on an automobile truck which stopped for them to get off opposite the entrance by the footpath, and appellee got off of the truck, crossed the road, and as he walked, or attempted to walk, onto the path at a point 112 feet from the premises of the pipe line company, at 7:27 a. m., he was run over by a car in the company's service driven by an employee, on his way to report for duty, which car would have gone into said premises at the entrance for vehicles 500 feet west of the entrance for pedestrians when the accident occurred. That the car, in running over him, knocked out two of his teeth, fractured the vertebræ of his neck, lacerated his spinal cord, and broke, crushed and splintered the bones in both legs. He sets up in detail the injuries received, and alleges that he was totally and permanently disabled; that he was on his way to work on the company's time by the usual and customary way, entering the trail constructed and maintained by the company as the exclusive means of entrance for footmen, and when injured was within the zone of his employment, and the circumstances and conditions which called for a continuous and frequent crossing of the road at a point opposite to the path maintained by the company created a special hazard incident to his employment, and subjected him to a degree of danger and hazard peculiar to his work that was not common to the public; that his injuries had to do with, and originated in, the work of the pipe line company and were received while engaged in and about the furtherance of the affairs and business of said company during working hours.

The defendant answered by general demurrer, special exceptions, general denial, and specially denied that appellee was injured in the course of his employment as a laborer for the pipe line company, or that the injuries were received while engaged in or about the furtherance of the affairs or business of the company, but that such injury might happen to any person on any street regardless of his employment, and at the time the injury was received there was no relation of master and servant between appellee and the company, and no control was exercised over him at that time by the company; that the causative danger was not peculiar to his work, but common to the neighborhood, and was not incidental to the character of business in which appellee was engaged, and did not have its origin in any risk connected with his employment.

In answer to special issues submitted by the court, the jury found that appellee sustained his injuries in the course of his employment for the Texas Pipe Line Company, and was permanently and totally disabled for work by such injuries, and that manifest injustice would result to him unless his money was paid in a lump sum. On this verdict, the court rendered judgment for appellee.

Appellant, by several assignments of error, assails the action of the trial court in refusing to give its requested peremptory instruction, because the evidence was insufficient to present any issue of fact upon which appellee was entitled to recover....