Texas & N. O. R. Co. v. Pool, 3107

• Decision Date: 19 November 1953
• Docket Number: No. 3107,3107
• Citation: 263 S.W.2d 582
• Parties: TEXAS & N. O. R. CO. v. POOL.
• Court: Texas Court of Appeals

Page 582

263 S.W.2d 582

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

No. 3107.

Court of Civil Appeals of Texas, Waco.

Nov. 19, 1953.

Rehearing Denied Jan. 7, 1954.

Baker, Botts, Andrews & Parish, Houston, Hancock & Hancock, Waxahachie, Taylor & Dickens, Marlin, Abner V. McCall, Waco, for appellant.

Jacobs & Schmidt, Houston, for appellee.

TIREY, Justice.

This is a negligence case brought under Federal Employers' Liability Act, § 1, as amended, 45 U.S.C.A. § 51.

Appellee, an employee of appellant for more than 31 years, recovered a jury verdict in the court below for the sum of $57,971. He was a railroad engineer at the time he received his injuries and was engaged in his regular line of duty of readying his engine for a trip to Fort Worth, and while so doing he crossed the track in the rear of his engine and slipped on a piece of grease on a railroad tie and fell and sustained injuries. For specific acts of negligence he alleged substantially that defendant (a) failed to provide a safe place for him to work at the time in question in that it failed to fill up with gravel or shell the area around the tracks in question to safe depth at least covering the ties and the area between the walkway and the tracks in question; (b) in failing to warn him of the existence of oil and grease upon the tracks, rails and ties in and surrounding the outbound engine house tracks at the Ennis yards where he was required to work; (c) in failing to keep the ties, rails and tracks at the place in question free and clear of oil and grease and other foreign substances; (d) in permitting oil and grease to drop upon the ends of the ties at the place in question when same would become hidden by dust and sand and not discernible to the eye of a person of ordinary prudence, acting in the course of ordinary care. In connection with the foregoing specific allegations appellee alleged that appellant had knowledge of the dangerous condition and the existence of the oil and grease upon the tracks for a sufficient length of time in which in the exercise of ordinary care it should have removed and cleaned up the same to the extent that it would be a safe place for appellee to work, and that appellant was guilty of negligence in each of said particulars alleged above, and that such negligence directly and proximately caused and resulted in the injuries of appellee. Pertinent to this discussion appellant filed general denial and specially pleaded that defendant was negligent in many respects and specially pleaded that defendant's negligence was the sole proximate cause of his fall. The jury in its verdict, pertinent to this discussion, convicted the appellant of negligence in each of the respects charged against it and found that each was a proximate cause of appellee's injuries and acquitted appellee of all acts of negligence charged against him.

Appellant's Point 1 is to the effect that the judgment should be reversed and rendered because there is no evidence of any act or omission of the defendant that proximately caused appellee's injuries. Points 2 to 25, inclusive, are substantially to the same effect, except Points 4, 7, 10, 13, 16, 19 and 22 assert that the findings of the jury are not supported by sufficient evidence.

In appellee's brief we find substantially the following summary: On August 3, 1951, at about 2:30 P.M., appellee was readying defendant's engine for a run to Fort Worth; that he was inspecting and oiling his engine and in order to complete it he was forced to cross the tacks to the rear of the engine; that he picked his way across a tie, stepping on the dry places that were free of oil and grease; that when he stepped on the end of a tie his feet went out from under him and he fell striking his back on the steel rail; that the tracks were covered with oil, water, grease, mud and slush between the ties as well as on the ties; that the employees had to pick their way across the track by walking on what appeared to be dry spots; that defendant, through its Superintendent and its Master Mechanic, had known of the condition of these tracks for many years prior to plaintiff's injury; that letters were written to both the defendant's Superintendent and Master Mechanic before the accident, placing them on notice of the conditions of these outbound engine house tracks which created a safety hazard; that the oil and water soaked the sand and gravel between the ties and made a slush; that if one would step on the sand and gravel between the ties he would bog down over his shoe tops; that oil was placed on the tracks by the discharge of the accumulated steam and oil in the oil heaters of the engines that were readied at this place; that oil also got onto the tracks by reason of employees letting the fuel oil tanks overflow when they were being filled; that oil also was dropped by engineers in oiling the engines; that grease was put on the tracks and ties by reason of its dropping off of the engines that had been greased with pressure guns at the roundhouse; that defendant's employees would put too much grease in the fittings causing grease to squirt out of the joints which later dropped off; that water got on the tracks when employees would run the water tanks over; that the excess grease on the engines could have been wiped off before the engines left the roundhouse, which was not done; that the sand and gravel between the ties of the outbound engine house tracks were seldom cleaned up; that only one man did any work on this track and he only filled holes along with doing his other work of walking 20 to 30 miles of track daily; that the area between the walkway and between the ties could have been concreted to give better footing; that this was not done until after plaintiff was injuried; that the area could have been improved proved by placing fresh sand and gravel on the tracks; that this was done infrequently; that the oil from the oil heaters could have been prevented from being discharged on the tracks by having the heaters blown out at the roundhouse over a sump; that grease that fell from the engines could have been removed after each engine departed; that several years previously a man had been assigned to constantly clean up the area; that it was much better then.

Appellee was familiar with the condition of the tracks and place where he sustained the injury, and since no one saw him fall his testimony is pertinent and controlling in this behalf. On direct examination he testified in part as follows 'Q. Now, when you crossed this track, where did you cross? A. The only place was on the ties.

'Q. Did you look at the ties? A. Yes, I did.

'Q. What did it look like? A. Well, in places it was greasy, but I picked the best places.

'Q. What did the places you stepped on look like? A. It looked like it was safe to step on all right.

'Q. Now as you stepped across the track did anything happen? A. Yes; I fell.

'Q. What caused you to fall, do you know? A. Yes; I stepped across the rail and hit a piece of grease lying on the tie.

'Q. How do you know there was a piece of grease? A. I found it after I fell.

'Q. What did it look like? A. Just a shiny piece of grease where I stepped.

'Q. Before you stepped there what did it look like? A. I couldn't see anything before I stepped; it looked clear before I stepped.

'Q. Looked like it was safe? A. Yes, sir.

'Q. Is that what you did? A. Yes, sir.

'Q. What happened? A. I fell.

'Q. What happened to your feet? A. Both feet was over the rail and the other part of my body was beside the rail.

'Q. Was anyone there? A. I don't know; I didn't notice anybody.

'Q. Did you get up then? A. Yes, sir. I got up and stretched my legs; was hurt pretty bad but I walked to the cab.'

On cross-examination appellee testified in part as follows:

'Q. Did you cross the first rail-the west rail? A. Yes, sir.

'Q. Did you cross the second rail-the east rail? A. Yes, sir.

'Q. Did you get both feet across? A. Yes, sir; both were across when I fell. Both feet was across and my body was--

'Q. Were your feet on the end of the ties? A. Yes, sir.

'Q. Both of them? A. I couldn't say; it was done so quickly I just know I fell.

'Q. You don't know quite how it was? A. That's right.

'Q. Didn't you testify that you got both feet over the far rail and that both of them slipped out from under you and that you fell backward? A. That's right.

'Q. And that you struck your back on the rail. Is that the way it happened? A. That's right.

'Q. Was that day or night time? A. It was day time.

'Q. Were you working slow or fast? A. Had to work slow.

'Q. Were you looking carefully where you put your feet? A. Yes, sir.

'Q. You looked before you stepped? A. Yes, sir.

'Q. You didn't see anything on it? A. No, sir.

'Q. When your deposition was taken in Houston, did you testify that there was a piece of grease on the tie upon which you stepped with both feet, about 3 1/2 inches long, 3 inches wide, and about 1/8 inch thick? A. I testified that I saw that grease after I had fallen.

'Q. You did testify that? A. Yes, sir.

'Q. You say you looked, and that thing lying right in front of you, and you didn't see it until after you had fallen? A. That's right; yes, sir.

'Q. That is the way you now testify that the accident happened? A. That's right; yes, sir.

'Q. What kept you from seeing it? A. After I had fallen I notificed that there was a kind of dust over it that kept me from seeing it.

'Q. A film of dust over it? A. Yes, sir.

'Q. So when you didn't see it, it was because it was covered by that film of dust? A. That is what I believe.'

The outbound engine house tracks were about 350 feet long, with a concrete sidewalk about 2 1/2 feet wide. These sidewalks are from 4 to 8 inches from the end of the tie; the rails of the track rest on the ties and the ties are from 4 to 8 inches apart. Sand and gravel fill the space between the ties in part. Such sand and gravel fill was flush with the top of the ties in the center of the track and sloped toward the rail on...