Texas Employers' Ins. Ass'n v. Boecker, 11229.

• Decision Date: 17 September 1932
• Docket Number: No. 11229.,11229.
• Citation: 53 S.W.2d 327
• Parties: TEXAS EMPLOYERS' INS. ASS'N v. BOECKER.
• Court: Texas Court of Appeals

53 S.W.2d 327

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

No. 11229.

Court of Civil Appeals of Texas. Dallas.

September 17, 1932.

Rehearing Denied October 15, 1932.

Error from District Court, Dallas County; Rob't B. Allen, Sr., Judge.

Suit under the Workmen's Compensation Law by Mrs. Elisa Boecker against the Texas Employers' Insurance Association. Judgment for plaintiff, and defendant brings error.

Affirmed.

Lawther, Cox & Cramer and James P. Swift, all of Dallas, for plaintiff in error.

W. E. Johnson, of Dallas, for defendant in error.

JONES, C. J.

In a suit under the Workmen's Compensation Law (Vernon's Ann. Civ. St. art. 8306 et seq.), defendant in error, Mrs. Elisa Boecker, recovered a lump sum judgment in the sum of $3,329.48 against plaintiff in error, Texas Employers' Insurance Association. This judgment was awarded defendant in error as compensation for the death of her husband while an employee of the McKenzie Construction Company, which carried compensation insurance with plaintiff in error.

The only contested issue in the trial court was whether deceased received his fatal injuries while in the scope of his employment. This issue was submitted to the jury in the form of two special issues, and the verdict of the jury was in favor of defendant in error. The only contested issue in this court is whether the findings of the jury find support in the evidence. The following are the facts:

The city of Dallas caused to be constructed a public improvement known as the "Good Street Underpass." The general construction of this improvement was being done by the Vilbig Construction Company under contract with the city of Dallas. The Southwestern Bell Telephone Company had theretofore constructed a conduit for the laying of its wires underground, and as the Good street underpass required considerable excavation, the city of Dallas required such telephone company to lower its conduit. This work was contracted to be performed by the McKenzie Construction Company, and its performance, at the place of the underpass, required the digging of a deep ditch. This conduit was laid on Floyd street, which crosses Good street, where the underpass was under construction, at right angles; Good street running substantially north and south, Floyd street running substantially east and west. Hawkins street runs parallel with Good street, and is the first street east. To the south of Floyd street, and south of the underpass being constructed, are two railroad tracks, and the next street to the south, running substantially east and west, is Elm street; Floyd street, Good street, and Hawkins street, in the vicinity of this construction, were closed to general traffic. The immediate vicinity of the work on the Good street underpass was inclosed by the Vilbig Company by a barricade, and the work being done on the conduit by the McKenzie Construction Company was within this barricade. At the time in question, the ditch for the laying of the conduit had been opened for a depth of several feet from Hawkins street across Good street, and some distance west of same; about a hundred feet south of this open ditch the builder of the underpass had erected a tower and had dug a pit, this tower and pit were between Elm street and Floyd street and was within the Vilbig barricade. The tower and pit were in Good street, and on the east side thereof; to the north of Floyd street, and on the west side of Good street, was located a shanty in which the McKenzie Construction Company kept certain tools and the lanterns to be put out at night as danger signals along the construction of the conduit; other property used by the McKenzie Construction Company was located at different points along Hawkins street, some of it at points on the south side of Floyd street.

The deceased was employed by the McKenzie Construction Company as a night watchman, and it was his duty to report for his work about 4:30 or 5 o'clock p. m. It was necessary for him to clean and refill his lanterns preparatory to putting them out when darkness came, and to perform the special duties of a night watchman in respect to protecting McKenzie Construction Company's property on the ground, and in warning travelers who might attempt to use the closed street. Deceased left his home in Oak Cliff on the street car, got off on Main street at some place south of this work, had necessarily traveled in a somewhat northerly direction, entered the barricade, and was standing at the pit, in the immediate vicinity of the said tower, when he was struck by a truck belonging to the Vilbig Construction Company, and received injuries from which he died. From the time he entered the barricade until the time he was injured, the deceased appears to have been seen by but one person, an employee of the Vilbig...