Texas & N. O. R. Co. v. Sarver

• Decision Date: 15 January 1938
• Docket Number: No. 12288.,12288.
• Citation: 113 S.W.2d 317
• Parties: TEXAS & N. O. R. CO. v. SARVER.
• Court: Texas Court of Appeals

113 S.W.2d 317

TEXAS & N. O. R. CO. v. SARVER.

No. 12288.

Court of Civil Appeals of Texas. Dallas.

January 15, 1938.

Rehearing Denied February 12, 1938.

Appeal from District Court, Grayson County; R. M. Carter, Judge.

Suit by Clifford Sarver against the Texas & New Orleans Railroad Company to recover damages for personal injuries suffered while in the employ of the defendant. From a judgment in favor of the plaintiff, the defendant appeals.

Judgment reversed, and judgment rendered for defendant.

Baker, Botts, Andrews & Wharton, of Houston, and Head, Dillard, Maxey-Freeman & McReynolds, of Sherman, for appellant.

Webb & Webb, of Sherman, for appellee.

BOND, Chief Justice.

Clifford Sarver filed suit against Texas & New Orleans Railroad Company to recover damages for alleged personal injury which he claims to have suffered while in the employ of the railroad company.

At the time of the alleged injury, appellant was engaged in interstate commerce, and had in its employ some 30 or 40 men engaged in relaying rails over a distance of about 6½ miles between Sherman and Denison, removing 80-pound rails and replacing them with 90-pound rails. Appellee was employed in the work, and, at the time of his injury, was operating a bolting machine. The machine weighed about 1,400 pounds, and, while engaged in removing it from the track to the railroad embankment, placed his foot upon what appeared to the eye to be a solid footing, the ground caved in, causing his foot to sink down in a concealed hole, and the weight of the machine to fall upon him.

Appellee alleged that, on approach of a train, it was necessary and a rule of the company, for the operators of the bolting machine, to take it off the rails and place it about 4 feet distant on the embankment, to let the train pass; that the ground along the right of way where the work had to be performed was full of hidden holes, caused by varmints, ground squirrels, and storms, of which appellant knew or, by the exercise of ordinary care, should have known; and that, knowing the character of the work which appellee was performing and the necessity for the removing of the bolting machine from the track and placing it on firm ground, and the presence of burrowing rodents in the vicinity, appellant negligently failed to tamp the ground along the right of way, particularly at the place where appellee was working, and to take such steps as were necessary to render the ground safe for the work to be done.

Appellant answered by general denial, and specially alleged that the roadbed was a standard, well-built, solid roadbed, of full and sufficient width for the operation of the bolting machine, not defective in the manner alleged; that its construction and width was open and obvious, known to appellee, and the injuries, if any, he sustained resulted from a risk assumed by him; that, if there was a hole in the roadbed crusted over, as appellee alleged, same was a latent defect not known to appellant, its agent or servants, and not discoverable by the usual and proper inspection of the roadbed, and that, if appellant was suffering from any disability, it was due to disease or injury, or abnormal conditions which he had prior to the time he claims to have been injured.

The case was tried to a jury and, in answer to special issues, the jury found, in effect, that appellant was injured in the course of his employment, as the proximate result of negligence of appellant in failing to provide a reasonably safe place for him to work; that appellee was injured while assisting in removing a bolting machine from the track and placing his foot upon what appeared to the eye to be a solid footing, causing the embankment to cave in, his foot to sink down into a concealed hole, and the machine to fall upon him; that appellant was guilty of negligence in failing to make inspection of its roadbed, as a person in the exercise of ordinary care would have made under the same or similar circumstances.

On the verdict of the jury, judgment was rendered in favor of appellee against appellant for the sum of $12,500.

The gravamen of the contentions, as revealed by the pleadings, evidence, and findings of the jury, centers on the issue as to whether or not appellant is liable for appellee's injuries directly caused by a latent defect in the roadbed. On the issue, it might...