Texas & New Orleans R. Co. v. Arnold, 6536

• Decision Date: 25 June 1964
• Docket Number: No. 6536,6536
• Citation: Texas & New Orleans R. Co. v. Arnold, 381 S.W.2d 388 (Tex. Ct. App. 1964)
• Court: Texas Civil Court of Appeals
• Parties: TEXAS & NEW ORLEANS RAILROAD COMPANY, Appellant, v. E. H. ARNOLD, Appellee.

Page 388

381 S.W.2d 388

TEXAS & NEW ORLEANS RAILROAD COMPANY, Appellant, v. E. H. ARNOLD, Appellee.

No. 6536.

Court of Civil Appeals of Texas, Beaumont.

June 25, 1964.

Rehearing Denied July 22, 1964.

Baker, Botts, Andrews & Shepherd, McGregor, Sewell & Junell, Houston, for appellant.

Helm, Jones, Pletcher & Winkelman, Houston, Cam Harrell, Conroe, for appellee.

HIGHTOWER, Chief Justice.

This is an action brought for damages under the Federal Employers' Liability Act. Trial was before a jury, and judgment was for plaintiff upon the answers of the jury to the special issues.

We first pass upon appellee's motion to strike bills of exception, statement of facts and transcript and to dismiss this appeal. It is contended the record was not filed in this court within the time prescribed by the Rules of Civil Procedure. The precise point to be passed upon is whether Rule 329-b, Texas Rules of Civil Procedure, was complied with--Paragraph 3 and a part of Paragraph 4 of Rule 329-b read as follows:

'3. All motions and amended motions for new trial must be determined within not exceeding forty-five (45) days after the original or amended motion is filed, unless by one or more successive written agreements of the parties in the case filed with the clerk of the court the decision of the motion is postponed to a day certain specifically set out in any such agreement. Any such day certain shall not be more than ninety (90) days after such original or amended motion is filed.

'4. It shall be the duty of the proponent of an original or amended motion for new trial to present the same to the court within thirty (30) days after the same is filed. However, at the discretion of the judge, and original motion or amended motion for new trial may be presented or hearing thereon completed after such thirty (30) day period. Such delayed hearing shall not operate to extend the time within which the original or amended motion must be determined, unless such time be extended by agreement as provided for in the preceding subdivision of this Rule. * * *'

The agreed facts in this case show that the attorneys for appellee and appellant in open court agreed to an extension of time for the court to determine the motion for new trial. The statement of facts reveals the following transpired, Mr. Sewell representing the appellant, and Mr. Jones the appellee:

'Mr. Sewell: Is it agreed the Court can sign an order extending the time until next Saturday?

'Mr. Jones: We certainly want to accomodate the Court.

(Discussion off the record.)

'Mr. Sewell: Let the record show that pursuant to agreement of both sides, the Court has extended the time for determination of the motion which was represented this morning to and including Saturday, September the 30th, 1961.'

Appellee argues that this does not comply with the requirements of 329-b that this postponement is not a written agreement and was not filed with the clerk of the court. We hold that the agreement in open court together with the dictation of the agreement to the court reporter is compliance with Rule 329-b. Texas Employers' Ins. Ass'n v. Martin, 162 Tex. 376, 347 S.W.2d 916, indicates Rule 329-b must be read in the light of the portion of Rule 11, T.R.C.P., which provides for an agreement to be made in open court and be entered of record. The motions are denied.

Relative to appellant's points of error 1-5, the appellee alleged in his petition that the appellant failed to furnish the appellee a reasonably safe place to do his work and failed to provide suitable equipment and appliances for the work. Appellant specially excepted to these allegations of negligence as being too general, vague and indefinite, which exception was overruled by the trial court.

The jury found in answer to Issues 1 and 3 that appellant failed to furnish appellee a reasonably safe place in which to do his work, and failed to furnish appellee suitable equipment to stand on in doing the type of work he was doing and that each was a proximate cause of the occurrence made the basis of the suit. The jury found favorably to appellee on all of the contributory negligence issues, and that the appellee's fall was not the result of an unavoidable accident.

The appellant complains of the trial court's action in overruling its special exception to the general pleading of negligence, and in submitting the issues of negligence, and proximate cause in such general manner.

If this had been a common law action for damages, there is no doubt but that appellant would have been correct in its position. But, we are convinced the Supreme Court of the United States would hold the pleadings and the special issues to be sufficient for a suit brought for recovery under the F.E.L.A. It is said in Brown v. Western Ry. Co. of Alabama, 388 U.S. 294, 70 S.Ct. 105, 94 L.Ed. 109:

'Strict local rules of pleading cannot be used to impose unnecessary burdens upon rights of recovery authorized by federal laws. 'Whatever springs the State may set for those who are endeavoring to assert rights that the State confers, the assertion of Federal rights, when plainly and reasonably made, is not to be defeated under the name of local practice.' Davis v. Wechsler, supra, 263 U.S. at page 24, 44 S.Ct. at page 14, . Cf. Maty v. Grasselli Chemical Co., 303 U.S. 197, 58 S.Ct. 507, 82 L.Ed. 745. Should this Court fail to protect federally created rights from dismissal because of over-exacting local requirements for meticulous pleadings, desirable uniformity in adjudication of federally created rights could not be achieved. See Brady v. Southern R. Co., 320 U.S. 476, 479, 64 S.Ct. 232, 234, 88 L.Ed. 239.' And see Arnold v. Panhandle & S.F. RR. Co., 353 U.S. 360, 77 S.Ct. 840, 1 L.Ed.2d 889.

In view of these and other Supreme Court cases, we are impelled to the conclusions that a plaintiff in a F.E.L. case cannot be required to plead more specifically. Moreover, all that is required by Rules 45 and 47, T.R.C.P., is that the pleadings reasonably apprise the defendant of the grounds upon which plaintiff seeks to recover. We think appellee's pleadings sufficiently conform to this rule in view of the fact that appellant and its agents were charged with knowledge of the tools and equipment with which appellee was furnished to perform his work. Appellant's Safety Rule No. 4149, hereinafter more fully alluded to, specifically forbade the use of stepladders in the performance of the type of work appellee was engaged in when injured. The only tools in use at the time of the accident were a wrench and the stepladder. What would further it have availed appellant, who was charged with such knowledge, had appellee specifically plead that such appliances were the tools which were unsuitable to stand on or to perform the work in which he was engaged? Appellant's contentions are overruled.

In connection with its 6th and 7th points, the court, in its charge to the jury, defined 'reasonably safe place to work' and 'suitable equipment to stand on' as 'such a place and equipment as an ordinarily prudent railroad company would have furnished its employees under the same or similar circumstances.' Objection to these definitions was on the basis that they did not embrace the standard of care of an ordinarily prudent person in the exercise of ordinary care, thus constituting a comment upon the weight of evidence and leading the jury to believe that there was some standard of care imposed upon railroads different from that involved in the standard of care of ordinarily prudent persons.

The points are without merit. As stated by appellee in its brief, the court's charge in such respect is more favorable to appellant than it should have been. It has been consistently held that the standards or customs of a particular enterprise might themselves be negligent because they did not rise to the standard of the ordinarily prudent person. Ordinary care may be something above and beyond the customs and standards ordinarily incident to the organization or a given business. We doubt that it can ever be less than the standards of care ordinarily exercised therein. Since the jury was required to measure the conduct of appellant in respect to the railroad industry, it is in no position to complain. If it exercised less care than was exercised by reasonably prudent railroad companies, it was guilty of negligence. That similar instructions have not been found erroneous see Taylor v. White, 212 S.W. 656 (Com.App.1919, judg. adopted); Texas Coca-Cola Bottling Co. v. Kubena, 109 S.W. 1098 (n.w.h. Civ.App.1937); Houston & T. C. R. Co. v. Alexander, 103 Tex. 594, 132 S.W. 119, (1910); San Antonio St. Ry. Co. v. Caillonette, 79 Tex. 341, 15 S.W. 390, (1891); Great Atlantic & Pacific Tea Co. v. Evans, 142 Tex. 1, 175 S.W.2d 249 (1943).

Appellant's 8th point complains of the court submitting special issue No. 3 to the jury, inquiring as to whether defendant failed to furnish plaintiff suitable equipment to stand on. As hereinbefore observed, the court's charge consisted of only two primary issues inquiring as to the conduct of the defendant. Special issue No. 1 (and the corollary proximate cause special issue No. 2) inquired as to 'whether the defendant failed to furnish plaintiff a reasonably safe place in which to do his work.' Special issue No. 3 (and the corollary proximate cause special issue No. 4) inquired as to 'whether defendant failed to furnish plaintiff suitable equipment to stand on in doing the type of work he was doing.' Therefore, appellant contends that the submission of special issue No. 3, when considered in connection with the court's submission of 'reasonably safe place to work' in special issues 1 and 2, constituted a dual submission of this theory of appellee's case, in that in considering special issues 1 and 2 the jury would have, of necessity, considered the question inquired about in special issue No. 3, thus constituting an over-emphasis of this theory of recovery...