Texas & P. Ry. Co. v. Howell

• Decision Date: 13 May 1938
• Docket Number: No. 1798.,1798.
• Parties: TEXAS & P. RY. CO. v. HOWELL.
• Court: Texas Court of Appeals

117 S.W.2d 857

TEXAS & P. RY. CO. v. HOWELL.

No. 1798.

Court of Civil Appeals of Texas. Eastland.

May 13, 1938.

Rehearing Denied June 10, 1938.

Appeal from District Court, Taylor County, Forty-Second Judicial District; W. R. Chapman, Judge.

Action by A. A. Howell against the Texas & Pacific Railway Company for injuries suffered by plaintiff while loading cotton from defendant's platform onto railway cars, allegedly because of defective condition of the platform. From a judgment in favor of the plaintiff, the defendant appeals.

Judgment reversed and cause remanded.

R. S. Shapard, of Dallas, and Wagstaff, Harwell, Wagstaff & Douthit, of Abilene, for appellant.

Childers & Shaw and Cox & Hayden, all of Abilene, for appellee.

GRISSOM, Justice.

A. A. Howell sued the Texas & Pacific Railway Company for damages resulting from injuries suffered while loading cotton from the defendant's platform onto railway cars at Trent. Plaintiff was employed to load the cotton by its owner. The injury occurred September 19, 1936. That plaintiff was an invitee at the time of his injury is admitted.

Plaintiff alleged (a) that defendant's platform was old and the boards constituting the surface thereof had become decayed, weak and rotten to the extent that same would break when a man of ordinary weight stepped upon same; that said rotten condition of plaintiff's platform "was hidden and latent" and plaintiff was unaware thereof, but that defendant knew said condition or by the exercise of ordinary care could and should have known thereof; (b) that defendant maintained said platform and invited plaintiff and others to work thereon while said platform contained rotten boards, and boards that had holes in them, which constituted a dangerous situation known to the defendant, or which should have been known to defendant and would have been known by it had it exercised ordinary care. (c) That defendant knew of the rotten condition of the boards in the platform and holes in same, or by the exercise of ordinary care could and should have known of same and failed to repair said platform; (d) plaintiff alleged in the alternative, that if he be mistaken in his allegations that defendant knew of the defective and dangerous condition of the platform, or could and should have known of same, and if in fact the defendant was unaware of the alleged condition of the platform, then the duty devolved upon the defendant to exercise ordinary care to inspect said platform; that defendant failed to so inspect said platform. Each of said alleged acts or omissions, plaintiff charged, constituted negligence and the proximate cause of his injuries.

With reference to the manner in which he suffered injury, plaintiff alleged that he "stepped into a hole in a rotten plank or board on said platform, and that his heel went through said hole in said board and that his foot broke through the board," thereby causing the injury and damage for which he sued.

In answer to special issues submitted the jury found, among other things, (1) that there was a rotten plank in defendant's platform on the 19th day of September, 1936; (1a) that the rotten plank rendered said platform an unsafe place for plaintiff to work; (2) that defendant did not know of the unsafe condition of its platform; (3) that defendant could have known of said unsafe condition "by exercising ordinary care in the inspection of said platform"; (4) that defendant was negligent in maintaining the platform with a rotten and decayed plank in same; (5) that such negligence of defendant "in permitting said platform to remain in said condition" proximately caused plaintiff to fall and sustain personal injury; (6) that defendant was negligent in failing to remove said rotten plank; (7) that such negligence of defendant "in failing to repair said platform by removing said rotten board" proximately caused plaintiff to fall and sustain personal injury; (8) that plaintiff did not know of the unsafe condition of defendant's platform; (9) that by the exercise of ordinary care plaintiff could not have known of the unsafe condition of defendant's platform; (10) that plaintiff was not negligent in stepping on the plank on defendant's platform at the time and place complained of; (12) the amount of plaintiff's damages was fixed at $850.

In answer to defendant's requested issues, the jury found: (2) That defendant did not exercise ordinary care to protect plaintiff; (3) that a person in the exercise of ordinary care situated as plaintiff was could not have seen the hole in the platform; (4) that plaintiff did not at any time prior to the accident see the hole in the platform; (6) that at the time of the accident defendant did not know of the defective condition of its platform.

On the verdict the court rendered judgment for plaintiff for $850, from which judgment defendant has appealed.

Defendant assigns as error (1) the action of the court in overruling its motion for an instructed verdict; (2) the overruling of its motion for judgment notwithstanding the verdict.

As hereinbefore stated, the allegations of fact with reference to the injury were that "plaintiff stepped into a hole in a rotten plank or board on said platform, and that his heel went through said hole in said board and that his foot broke through the board." We believe a fair construction of all of plaintiff's testimony upon the trial is to the effect, not that there was a hole in one of the planks of the defendant's platform and that he stepped into said hole, but, that plaintiff stepped on the side of a board in the platform along a crack in the platform, and the side of the board, being rotten, "caved off", or "shelled off", or "sluffed off", as it was variously stated by plaintiff. This construction, we think, naturally and necessarily results from such testimony of the plaintiff as is hereinafter quoted as illustrative of his contention upon the trial:

"Q. Now, at the time you stepped on that board there, what happened to the board, if anything? A. It sluffed off; they was a good board here (indicating) part of my foot hung on and my foot went in that crack. * * *

"Q. Had you seen this particular sluffed off place prior to that time? A. I had noticed a wide crack there; yes sir.

"Q. A wide crack there before this; you had noticed that how long prior to the accident? A. I could not say.

"Q. Can you approximate it? A. I don't remember recalling it only once or twice before then, just glanced at it. * * *

"Q. You did notice, however, that this place was sluffing off on this one particular plank for sometime before the accident occurred, that's right isn't it? A. No sir. I don't remember noticing it—anything particular about it. I just noticed they was an extra wide crack, something like that.

"Q. But you had noticed that crack? A. No, I hadn't noticed the crack there any more than any other cracks there in the platform.

"Q. You noticed it was extra wide? A. It seemed to be about a couple of inches wide, by judging it. * * *

"Q. And you will admit, will you not that generally speaking, Mr. Howell, that the platform was in good strong condition for the purpose for which you were using it? A. Yes sir.

"Q. That's true? A. Yes sir, it looked that way, yes sir.

"Q. And this one place that you did stick your foot into you had noticed that for some little time, that's right? A. Well, there is other cracks on the platform, and it too.

"Q. You had noticed that one there before had you not? A. Well, yes I believe I had noticed it; no more than I had any other cracks in the entire platform, because some cracks in it are two inches wide. * * *

"Q. Was there anything to distinguish the specific crack that broke in with you from any other cracks on the platform? A. No sir, they was not. Just like any ordinary crack, only it seemed to be a little wider, as it shows in that picture.

"Q. Could you tell when you stepped on it that it was likely to cave in with you? ...