Texas Pacific Coal & Oil Co. v. Grabner

• Decision Date: 20 April 1928
• Docket Number: (No. 430.)
• Citation: 10 S.W.2d 441
• Parties: TEXAS PACIFIC COAL & OIL CO. v. GRABNER.
• Court: Texas Court of Appeals

Page 441

10 S.W.2d 441

TEXAS PACIFIC COAL & OIL CO. v. GRABNER.

(No. 430.)

Court of Civil Appeals of Texas. Eastland.

April 20, 1928.

On Rehearing September 21, 1928.

Further Rehearing Denied November 9, 1928.

Appeal from District Court, Erath County; J. B. Keith, Judge.

Action by Gottfried Grabner against the Texas Pacific Coal & Oil Company. Judgment for plaintiff, and defendant appeals. Cause remanded for new trial.

Oxford & Johnson, of Stephenville, and John Hancock, of Fort Worth, for appellant.

Wright Morrow, of Houston, and Wm. C. Morrow and W. C. Wear, both of Hillsboro, for appellee.

FUNDERBURK, J.

Gottfried Grabner filed this suit against the predecessor of the Texas Pacific Coal & Oil Company on September 11, 1915, claiming damages for injuries sustained May 12, 1914. From a judgment for plaintiff in the sum of $10,000, defendant has appealed. While plaintiff's petition is susceptible of the construction that he sought recovery only on the theory of a breach of duty owing by a master to its servant, the honorable Court of Civil Appeals at Waco, upon a former appeal of the case, held that the pleadings and evidence tendered issues proper to be submitted to a jury to determine a question of liability on the theory of a breach of duty by a mine owner to an invitee upon its premises. Grabner v. Texas Pacific Coal & Oil Co. (Tex. Civ. App.) 279 S. W. 550. The relationship of master and servant, we think, is not inconsistent with a duty owing by the master as a mine owner to an employee as an invitee upon some particular part of its premises. For this reason we are inclined to agree with the Waco court. At any rate, since it appears that the pleadings remain the same, we feel justified in exercising an undoubted discretion to treat that interpretation of the cause of action as the law of the case. Upon the same pleadings and practically the same evidence as in this case, the Waco court held that the giving of a peremptory instruction in favor of the defendant was error. That court, after calling attention to the fact that defendant was under obligation to plaintiff as an invitee to use ordinary care for his protection and safety while he remained on the premises in such capacity, and was under obligation to use ordinary care in inspecting the premises to discover the dangerous condition, if any, and prevent plaintiff as an invitee being injured, further held:

"The question as to whether appellee [appellant here] used ordinary care to prevent appellant [appellee here] from being hurt, and whether its failure so to do was the proximate cause of the injury, and whether appellant was guilty of contributory negligence, were all questions of fact which should have been submitted to the jury."

On the last trial of the case, resulting in the judgment from which the present appeal is prosecuted, there was an agreement by which each party had the right to introduce in evidence the testimony transcribed by the stenographer and on file in the case which was given at the former trial. The agreement was applicable to the testimony of all witnesses who were not present at the trial. At the close of the testimony, the court submitted the case to the jury upon special issues, calling for findings (1) as to negligence of the defendant in failing to inspect the roof or overhead of the roadway or entrance into working place No. 4 where the injury occurred; (2) whether or not such negligence, if found to exist, was the proximate cause of the injury and damage; (3) whether plaintiff was guilty of contributory negligence in entering and remaining in the road entry at the time and place of his injury; and (4) the amount of damages. The verdict of the jury being favorable to the plaintiff, judgment was rendered accordingly.

Appellee insists that, the case having been tried in accordance with the decision of the Court of Civil Appeals at Waco, and the issues having been submitted to the jury, which, according to said decision should be submitted, and the trial being had upon the same pleadings with practically, if not identically the same evidence, the former decision constitutes the law of the case, and should be given controlling effect.

Appellant takes the position that the former decision is not controlling, or, if so, that it is in favor of appellant. On this point appellant calls attention that in the former decision the facts as found by the Court of Civil Appeals from the testimony of plaintiff were:

"That he (plaintiff) did not know exactly what the squeeze was, as he had not seen many of them. He testified that he did not know that rock would fall out of the roof of a mine occasionally after it had a squeeze."

The testimony of plaintiff on the last trial claimed to be different from the former testimony just quoted is as follows:

"I know squeezes often occur in mines. I know that when a squeeze occurs in a mine that there is danger of the rocks falling. I knew that was a squeeze. I could not tell what it is that makes the top fall. * * * I know it does fall."

We do not find in any of plaintiff's testimony in the statement of facts now before us where he states that he did not know that rock would fall out of the roof of a mine occasionally after it had a squeeze, as was stated in the former opinion. But the testimony which it is now insisted is different from the former testimony of the plaintiff was all in the statement of facts in the case before the Waco court, and was introduced from the former record by the defendant under the agreement above mentioned. It is therefore without any force or effect, so far as it is concerned, in showing that there is any difference in plaintiff's testimony in the last trial and the former trial. The statement that plaintiff testified he did not know that rock would fall out of the roof of a mine occasionally after it had a squeeze is apparently in such conflict with the testimony in the same record that he did know that there is danger of the rocks falling that we are inclined to view the statement as inadvertent. As plaintiff, however, testified in person upon the last trial, as well as the former trial, and there is an entire absence of any statement to the effect that he did not know that rock would fall out of the roof of a mine after a squeeze, it is, perhaps, our duty to consider the questions presented by appellant's various propositions claiming that the existence of contributory negligence or assumed risk under the present record is one of law, and that a peremptory instruction in their favor should have been given. No question of "assumed risk" as distinguished from "contributory negligence" is involved. "Assumed risk" is a principle having application only as between master and servant, and not as between the owner of premises and an invitee. We have only to consider then whether the admissions of plaintiff that he knew that, after a squeeze occurred in a mine, there was danger of the rocks falling, and that he knew upon the occasion in question that there was a squeeze and some of the rocks had fallen, are such that as a matter of law he was guilty of contributory negligence in going into and remaining in the room or entry where he was injured. There are certain phases of the relation of plaintiff and defendant as employee and employer proper to be considered.

The evidence shows that there had been a lay-off of four days, but that plaintiff had done everything necessary and proper to be done prior to the lay-off, and at that time there was no indication of a "squeeze." By "squeeze" is meant a settling of the earth, causing portions of the roof to cave in. Gomer Gower, appellant's mine superintendent, testified that the pit boss of each mine was charged with the duty of inspecting the roadway and entries, and, if a dangerous condition was found, to remedy it, and that the cleaning out of the rock was the first thing to be done after a squeeze occurred. The place of injury was in the roadway. David Singleton, a coal digger, testified that, after the miner cleans up his "brushing," his duty ends with the roadway, and that, when a squeeze occurs and throws rock down, it is the duty of the company to have it taken out, either by contract with the miner or by a company man. While these were matters bearing directly on the relation of the parties as employer and employee or master and servant, as said before, they have a bearing in determining the questions of negligence and contributory negligence of the owner of property and an invitee.

When plaintiff came to work after the four-day lay-off, his testimony is, that he went into his entry or room and saw a pile of rock which had either come from the roof or the side. There is no evidence how long he remained in the room, or just how extensive were his observations, but they may have been very casual, as he did not, it seems, then determine whether the fall of rock had come from the roof or the side. He had no duty, then, except the one which he performed, which was to inform appellant's representative that his room was not in condition to permit of his working therein. He went to make this report, and found the pit boss outside. The pit boss came down, and, after inspecting two other rooms, seems to have preceded plaintiff into the room where the injury occurred. The testimony is that the pit boss told plaintiff to "come on in here," and, when he came in, asked him to estimate the amount of rock which had fallen, with a view to negotiating with plaintiff to clean up the place under certain rules well known to the parties. There is no testimony showing how long the pit boss was in the room or entry before the plaintiff went in. They may have gone in practically together, but, on the other hand, it is not inconsistent with the evidence that the pit boss may have preceded plaintiff sufficiently long to have made all the inspection which the testimony shows was necessary to definitely determine the existence...