Texas & P. Ry. Co. v. Jefferson
| Decision Date | 08 June 1939 |
| Docket Number | No. 3849.,3849. |
| Citation | 131 S.W.2d 175 |
| Parties | TEXAS & P. RY. CO. v. JEFFERSON. |
| Court | Texas Court of Appeals |
Appeal from District Court, Harrison County; W. H. Strength, Judge.
Action by Augustus Jefferson against the Texas & Pacific Railway Company for injuries sustained when a heavy tractor wheel which plaintiff was aiding a fellow employee to roll fell and injured plaintiff. From a judgment for the plaintiff, defendant appeals.
Reversed and remanded.
T. D. Gresham and R. S. Shapard, both of Dallas, and Bibb & Bibb, of Marshall, for appellant.
Jones & Jones, of Marshall, for appellee.
The appellee Jefferson brought this suit against the Texas & Pacific Railway Company, appellant, to recover damages for personal injuries sustained by plaintiff, who was an employee of the defendant, working in its shops at Marshall, Texas. At the time of the accident in question plaintiff was aiding Grant Patterson, a fellow-employee, to roll a heavy tractor wheel weighing 1461 pounds. While so engaged the wheel fell, breaking plaintiff's leg in two places seriously injuring him.
It is conceded in the briefs of both parties plaintiff's rights and remedies are governed by the State law and not by the Federal Employers' Liability Act or the Federal Safety Appliance Act.
Upon answers returned to special issues judgment was rendered in plaintiff's favor for $4000, from which the defendant appeals.
The findings made may be briefly stated as follows:
(1) Patterson let loose the wheel in such way as to cause or permit the same to fall upon the plaintiff.
(2 and 3) Such action was negligence on Patterson's part and a proximate cause of plaintiff's injuries.
(4) Patterson let loose of the wheel without warning plaintiff of his intention to do so.
(5 and 6) Such action was negligence and a proximate cause of plaintiff's injuries.
(7) Defendant did not fail to furnish sufficient man-power or help to perform the work of moving the wheel.
(10) Assessed plaintiff's damages at $5000.
(11) Plaintiff's injuries were not the result of an unavoidable accident.
(12) Plaintiff's injuries were not the result of a risk ordinarily incident to the work in which he was engaged.
(13) Plaintiff's injuries did not result from a risk or danger of which he knew or which was so open and obvious that in the exercise of ordinary care in the discharge of his own duties he should have known.
(14) Plaintiff did not fail to properly guide or handle the wheel at the time of the accident.
(19) Plaintiff's act in turning loose of the wheel at the time the same tilted and began to fall did not constitute contributory negligence.
(21) The act of the plaintiff in turning loose the wheel at the time it tilted was not the sole proximate cause of his injuries.
(22) The plaintiff moved in front of the falling wheel in such a manner as to cause the same to fall upon him.
(23) Such action of the plaintiff constituted contributory negligence.
(25) Such action of the plaintiff was not the sole proximate cause of his injuries.
(26) Plaintiff did not fail to properly perform his part of the work of balancing the wheel immediately before it fell.
We quote issue No. 29 and its answer, with the instructions immediately preceding and following the same, as follows:
To the instruction immediately following special issue No. 29, it is objected that it constituted a general charge and improper since the case was submitted on special issues; also, improper because it informs the jury of the effect of its findings. The objection first stated is well taken under the following authorities: Texas & Pacific Ry. Co. v. Perkins, Tex. Com.App., 48 S.W.2d 249; Connecticut General Life Ins. Co. v. Warner, Tex.Civ. App., 94 S.W.2d 514; Humble Oil & Refining Co. v. McLean, Tex.Com.App., 280 S.W. 557; A. J. Anderson Co. v. Reich, Tex. Sup., 260 S.W. 162; Texas & N. O. R. Co. v. Harrington, Tex.Sup., 235 S.W. 188; Worden v. Kroeger, Tex.Sup., 219 S.W. 1094, 1096; St. Louis Southwestern R. Co. v. Hudson, Tex.Com.App., 17 S.W.2d 793; Radford Grocery Co. v. Andrews, Tex. Com.App., 15 S.W.2d 218.
The second objection is also good. Texas Indemnity Ins. Co. v. Davis, Tex.Civ. App., 32 S.W.2d 240; Panhandle & S. F. Ry. Co. of Texas v. Sedberry, Tex.Civ.App., 46 S.W.2d 719; Schroeder v. Rainboldt, 128 Tex. 269, 97 S.W.2d 679 (Com.App.); Texas & Pacific Ry. Co. v. Perkins, Tex. Com.App., 48 S.W.2d 249; Humble Oil & Refining Co. v. McLean, Tex.Com.App., 280 S.W. 557.
By bill of exception it is shown that one of the attorneys for plaintiff, in his closing argument, stated in substance and effect the following: ...
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