Texas & New Orleans Railroad Company v. Hayes

• Decision Date: 11 July 1956
• Docket Number: No. A-5623,A-5623
• Citation: 156 Tex. 148,293 S.W.2d 484
• Parties: TEXAS & NEW ORLEANS RAILROAD COMPANY, Petitioner, v. R. E. HAYES, Respondent.
• Court: Texas Supreme Court

Page 484

293 S.W.2d 484

156 Tex. 148

TEXAS & NEW ORLEANS RAILROAD COMPANY, Petitioner, v. R. E. HAYES, Respondent.

No. A-5623.

Supreme Court of Texas.

July 11, 1956.

Rehearing Denied Oct. 3, 1956.

Baker, Botts, Andrews & Shepherd, John F. Heard and Robert L. Steely, Houston, for petitioner.

Helm Jones, McDermott & Pletcher, Houston, for respondent.

HICKMAN, Chief Justice.

In the trial court judgment was rendered under the Federal Employers' Liability Act, 45 U.S.C.A. § 51 et seq., in favor of respondent. R. E. Hayes, against petitioner, Texas & New Orleans, Railroad Company, for $35,675 damages for personal injuries, which judgment was affirmed by the Court of Civil Appeals. 284 S.W.2d 776.

Respondent was a member of a switching crew in petitioner's Englewood Yard in Houston. We take this description of the accident from the opinion of the Court of Civil Appeals:

'On December 13, 1952, appellee (respondent) was working from 3 o'clock p. m. to 11 o'clock p. m. and was working with a switching crew in appellant's (petitioner's) Englewood Yards. This crew had taken a string of cars from appellant's (petitioner's) receiving track in Englewood Yards and at the time of the accident the engine was moving some 4 to 6 cars at a speed of 3 or 4 miles per hour. In the performance of his duties appellee (respondent), in attempting to get on the gondola car, swung onto the steel ladder on the side of the car. (This ladder consisted of a stirrup which was above the track and some distance above the ground on which appellee (respondent) was and above the stirrup were grabirons to enable a person to climb up the side of the car.) When appellee (respondent) swung onto the car he was in a stooped position and, in order to enable him to ride it, he reached for a grabiron above his head, his hand slipped and caused him to fall to the ground and sustain the injuries complained of,-multiple fractures of the left ankle. Appellee (respondent) said that at the time he was wearing thin cotton gloves and that when his hand slipped he felt a 'clump or lump of grease' on the grabiron.'

In answer to special issues the jury found that there was grease on the grabiron, which condition could have been ascertained by proper inspection; that petitioner failed to make a proper inspection, which was the proximate cause of respondent's injuries; that petitioner permitted grease to accumulate on the grabiron and allowed it to remain there for such a period of time that in the exercise of ordinary care it should have been discovered and removed; that the greasy substance on the grabiron rendered it dangerous; and that petitioner failed to warn respondent of the condition. Each finding of negligence was followed by a finding of proximate cause. Following the return of the verdict petitioner filed a motion for judgment non obstante veredicto, or notwithstanding the answers to various issues, which was overruled by the trial court, and which ruling is challenged by ten points in the application for writ of error.

Under the Federal Employers' Liability Act the employer is not an insurer of the safety of its employees, but its liability is for its negligence which proximately causes injuries to its employees. There is no contention that any act of negligence, except the presence of a lump of grease on the grabiron, caused respondent's injuries, and we agree with the contention of petitioner that '* * * the decisive question in this case is whether the evidence has established any negligence on the part of petitioner concerning that lump of grease.' There is no evidence in the record indicating how the grease got on the grabiron, who put it there, or how long it had been there. In order, therefore, to establish negligence the burden was upon the respondent to establish that the presence of the lump of grease on the grabiron was known to petitioner before the accident or that it had been there long enough to justify the inference that its failure to know it was due to a want of proper care. Missouri, K. & T. Ry. Co. v. Jones, 103 Tex. 187, 125 S.W. 309; Hopson v. Gulf Oil Corp., 150 Tex. 1, 237 S.W.2d 352. Under the facts of this case, the question is narrowed to these inquiries: Was the car inspected by petitioner's inspection crew shortly before the accident, and, if so, was there any evidence warranting the inference that the grease was on the grabiron at the time of such inspection? The answer to these questions must result from a careful consideration of the evidence. It will be considered in the light most favorable to the respondent.

Petitioner maintains two switching yards in Houston situated about five miles apart-the Englewood Yard, where respondent was injured, and the Hardy Street Yard. When trains are inspected in the Englewood Yard the duty of the inspectors extends to an inspection of all grabirons of each car for the presence of grease. When a train to be inspected pulls into the yard a blue flag in daytime and a blue lantern at nighttime is placed on the train, and the switching crew does not take over until the flag or lantern has been removed by the inspector. The time elapsing after the inspection of the cars and before they are turned over to the switching crew varies from a few minutes to an hour. Petitioner employs guards in the yards to put out persons who are not authorized to be there. From the time of the completion of the inspection until the switching crew takes over no one would have occasion to climb on the cars. On the day of the accident respondent came on duty at 3 o'clock and thereafter saw no one climb on the car. These facts to our minds afford some evidence from which the jury might draw the inference that, if this car was inspected in the Englewood Yard, the grease was on the grabiron when it was inspected, and that the inspector negligently failed to discover and remove the grease.

This brings us to the more difficult question of whether the car in question was inspected in the Englewood Yard. There is testimony in the record that sometimes cars are brought to the Englewood Yard from the Hardy Street Yard, and that such cars are inspected at the Hardy Street Yard and not again inspected at the Englewood Yard. There is no evidence that the cars involved here were moved from the Hardy Street Yard; neither is there positive evidence that they were not. No member of the inspection crew was called as a witness to give testimony as to whether or not he inspected this particular string of cars. The conclusion that the car was inspected in the Englewood Yard must be drawn, if at all, from parts of the testimony of various witnesses viewed in the light...