Thompson v. Gibson

• Decision Date: 23 January 1957
• Docket Number: No. A-5912,A-5912
• Citation: 298 S.W.2d 97,156 Tex. 593
• Court: Texas Supreme Court
• Parties: Guy A. THOMPSON, Trustee, New Orleans Texas & Mexico Railway Company, Petitioner, v. Jay Lee GIBSON, Respondent.

Page 97

298 S.W.2d 97

156 Tex. 593

Guy A. THOMPSON, Trustee, New Orleans Texas & Mexico Railway

Company, Petitioner, v. Jay Lee GIBSON, Respondent.

No. A-5912.

Supreme Court of Texas.

Jan. 23, 1957.

Rehearing Denied Feb. 27, 1957.

Hutcheson, Taliaferro & Hutcheson, Woodul, Arterbury & Wren, Carroll R. Graham and Howard S. Hoover, Houston, for petitioner.

Doener, Rinehart & Stuart, Oklahoma City, Oil., Fred Parks, Houston, for respondent.

SMITH, Justice.

This is a negligence case in which respondent, a locomotive engineer, brought suit under the Federal Employers' Liability Act, 45 U.S.C.A. § 51 et seq., against the petitioner, and two other railroad companies, seeking damages for injuries suffered as a result of failure to provide respondent with a safe place to work. It was alleged that the respondent was injured on December 5, 1950, and that at that time he was an employee of one or more of the defendant railroad companies, and that Guy A. Thompson was the Trustee for each of said companies. The cause was tried before a jury which returned a verdict in favor of the respondent. Based on the verdict, the court entered judgment in favor of the respondent and against the petitioner. The court rendered judgment that respondent take nothing as against the other railroad defendants. This action is not involved. Petitioner perfected an appeal to the Court of Civil Appeals for the First Supreme Judicial District of Texas. This court, under the rule authorizing equalization of the dockets of the several Courts of Civil Appeals of Texas, transferred this cause to the Court of Civil Appeals in and for the Second Supreme Judicial District of Texas. That court has affirmed the judgment of the trial court. 290 S.W.2d 305.

Respondent in his petition alleged in general terms that while discharging his duties as a railroad engineer for petitioner and at about the hour of 1:40 a. m., December 5, 1950, he was 'walking from the roundhouse at Settegast Railroad Yards to his engine which had been 'spotted' at a point some distance from the roundhouse, when because of the unsafe conditions of the railroad yard, it having been covered with a large amount of loose gravel made up of large and small stones, the plaintiff was caused to slip and fall,' resulting in serious and permanent injuries. These general allegations were followed by allegations of specific acts of negligence on the part of the petitioner charging that respondent's fall and resulting injuries were caused by nine specific acts of negligence, and that each and all of said acts of negligence, separately and concurrently, were a proximate cause of the respondent's fall and of the injuries suffered and sustained by him.

The nine acts of negligence were alleged as follows:

'1. In spotting the engine which the Plaintiff was to operate in an unsafe place under the circumstances and conditions then existing.

'2. In requiring the Plaintiff to walk from the roundhouse across the yard to his engine under the circumstances and conditions then existing.

'3. In covering the railroad yard about and between the tracks where Plaintiff was required to walk with large and small pieces of stone.

'4. In failing to use gravel of uniform size about and between tracks where Plaintiff was required to walk.

'5. In failing to firmly pack the gravel about and between the tracks at the place in question.

'6. In failing to properly illuminate that portion of the yard which Plaintiff was required to use in carrying out his duties.

'7. In failing to properly illuminate that portion of the yard where Plaintiff slipped and fell.

'8. In failing to provide a smooth walkway or path across the yards to the place where the engine was spotted.

'9. In failing to furnish the Plaintiff with a safe place to work.'

The jury found that the petitioner was negligent: (1) in requiring the respondent to walk from the roundhouse across the yard to his engine under the circumstances and conditions existing on the night in question; (2) in failing to use gravel of uniform size about and between the tracks where the respondent was required to walk; (3) in failing to firmly pack the gravel about and between the tracks at the place in question; and (4) in failing to provide a smooth walkway or path from the roundhouse across the yards to the place where the engine was 'spotted'.

Since this is a 'no evidence' case and is an action under the Federal Employers' Liability Act, we deem it not only necessary to discuss the evidence or lack of evidence and its effect but to lay down the rules governing our decision.

The safe place to work, which the petitioner was under a duty to furnish respondent, involved in this case is Settegast Yards. The evidence relative to the manner of construction of the yards is substantially without dispute. The Yards were comparatively new and the evidence shows that these Yards were constructed by the use of the latest techniques and methods and the plans and specifications followed were approved by the American Railway Engineers' Association; that the Association referred to is a national organization. C. R. Dubose, a witness called by the petitioner, testified:

'My name is C. R. Dubose; I am employed by the New Orleans, Texas & Mexico Railway Company and have been since 1924 as a civil engineer. My work primarily involves track construction, industrial track yard design and terminal design, freight and passenger terminals. In 1948, '49 and '50 I was resident engineer on the construction of Settegast yards, here in Houston.'

'Please tell the jury something about the planning and construction of that yard.

'A. Well, it was designed as a freight terminal under the A. R. E. A. specification and practice.

'Q. What is the A. R. E. A.? A. That is the American Railway Engineering Association, of which I am a member. It is primarily a freight yard and laid out on that construction.

'Q. Were those plans and specifications that you followed, were those approved by the American Railway Engineers' Association? A. Yes, that was the standard practice and specification that we followed in the design and construction of that yard.

'Q. Is that Association, the A. R. E. A., is that local? A. No, sir, it is national.

'Q. Of what is it composed? A. It is composed of railroad engineers over the United States, mostly in a supervisory capacity. To be a member of the A. R. E. A. you must meet certain qualifications by having so many years experience in this certain field, not followed by other engineers.

'Q. These specifications used in the construction of that yard, was that the best thinking of engineers developed in the construction of railroad facilities? A. That is true. The specifications and general plan are an accumulation of committee reports. We have committee reports on various phases of railroad construction, and they are compiled in the committee reports that are available to all members.'

'The Ballast used in the yards was pit run gravel. The specifications were that it must pass a 2 inch screen. It would eliminate rocks that would not pass a 2 inch screen. The first six inches of gravel was spread by draglines, and bull dozers over the entire area. The tracks were built on this six inches of gravel. Additional gravel was then unloaded from hopper bottom cars, making 12 inches of gravel, then it was levelled off between the rails to the top of the ties. The gravel was tamped immediately in the tracks. There was no tamping between the tracks. The only tamping along the track was by a machine. At that time that was the best known specifications and plans that we had to follow and we followed them. The gravel as it was put in was levelled off even with the ties. As the gravel picks up soil and dirt it becomes more solid. It is rather loose when it is put in but it acquires soil and dirt.'

'Q. You have walked in the yard at night when the lights were on? A. Yes, I have walked it many times. Being resident engineer I have been there many times.

'Q. Tell us about the gravel after it was first installed. A. It was pit run gravel and it was hard walking but I wouldn't say that it was dangerous. It was just like gravel in the fill of any road, and I have walked back and forth quite a number of times through there.

'The lights, then, the lighting of the yard and the gravel type of construction of the yard, the method that the gravel was placed in the yard, did all of those things meet all of the specifications that you engineers had access to at the time? A. To the best of our ability and knowledge at that time.'

'In the period From June to December, the gravel would tend to sink and become more solid because as you use it and walk over it, the vibrations of the train would tend to set the gravel up more than when it was put in. We use gravel out of the same pit that this came from in other yards on the line to Brownsville.'

On cross-examination the witness testified as follows:

'There was 12 inches of pit run gravel spread over the yard and levelled off between the rails to the top of the ties. It was standard gravel.'

'Q. You are not testifying there were not some rocks out there as big as my fist? A. In all of our specifications we do not have anything that would not pass a two inch screen, and we tested samples to see if it met specifications.

'Q. There could be rocks as big as my fist? A. I don't see how there could be, because you can't tamp them. You have shovels and machines that push the gravel under the tie and if you put those big rocks in there they would not hold because of the vibrations. They would stick down and would not hold.'

The yards had been in use about six months at the time of this accident. Respondent had, for several years, been assigned to the freight service running between DeQuincy, Louisiana, and Houston, Texas, and he had been operating into and out of Settegast Yards since the Yard had been open on an average of three times a week. Settegast is a large...