Trio Transport, Inc. v. Henderson

• Decision Date: 06 March 1967
• Docket Number: No. 7689,7689
• Citation: 413 S.W.2d 806
• Parties: TRIO TRANSPORT, INC., Appellant, v. A. J. HENDERSON, Appellee. . Amarillo
• Court: Texas Court of Appeals

Page 806

413 S.W.2d 806

TRIO TRANSPORT, INC., Appellant, v. A. J. HENDERSON, Appellee.

No. 7689.

Court of Civil Appeals of Texas Amarillo.

March 6, 1967.

Rehearing Denied April 3, 1967.

Albert Smith, Lubbock, for appellant.

Richard C. Milstead, Big Spring, and Calvin W. Wesch, Kermit, for appellee.

NORTHCUTT, Justice.

This is a personal injury suit brought by A. J. Henderson, as plaintiff, against Trio Transport, Inc., as defendant, to recover damages based upon the theory he was damaged by the negligence of the defendant. On September 10, 1962, the plaintiff was employed by St. John Drilling Company as a driller on an oil and drilling rig. On such date the drilling company had completed the drilling of the well and desired to move the drilling rig to another location. St. John Drilling Company employed Henderson and his crew to let down the derrick and get it ready to be loaded and Trio Transport, Inc. was hired to do the actual loading and hauling of the derrick to the new location. While the derrick was being loaded it fell and injured plaintiff.

The case was submitted to a jury upon special issues. In answer to the issues the jury found that the winch and truck in question were under the exclusive control and management of the defendant; that the falling of the derrick in question was due to the negligence of the defendant; that such negligence was a proximate cause of the falling of the derrick; that the defendant did not fail to have the derrick properly supported; that Melvin Terry (defendant's employee in charge of truck and winch) did not fail to properly engage the winch clutch in gear; that Melvin Terry failed to determine if the winch clutch was properly engaged after he threw the toggle switch; that such failure was negligence and that such negligence was a proximate cause of the falling of the derrick; that Melvin Terry did not fail to properly adjust the automatic brakes on the winch so as to prevent the bottom section of the derrick from falling; that Mr. Eaton (employee of defendant) was in charge of loading the derrick on the occasion in question; that Eaton told Henderson not to get under the derrick on the occasion in question; the jury was then asked if they found that Henderson went under the derrick after being told by Mr. Eaton not to go under it and the jury answered, 'No'; that same was not negligence nor a proximate cause of his injuries; that there was a danger that the derrick section might fall when Henderson went under the derrick to clear the lines; that Henderson did not know or appreciate the danger that the derrick section might fall; that Henderson voluntarily exposed himself to the risk when he went under the derrick to clear the lines; and that the falling of the derrick was not an unavoidable accident. The remaining issues concern amount of damages. Upon the verdict of the jury the trial court rendered judgment for the plaintiff. From that judgment the defendant perfected this appeal. The parties will hereafter be referred to as they were in the trial court.

The derrick was divided into three sections and designated as 'top section,' 'middle section' and 'bottom section.' The top and middle sections had been loaded, ready to be hauled. The bottom section, weighing several thousand pounds, was to be raised high enough so that the said second section could be backed under the bottom section. The bottom section had been raised to a sufficient height for the second section to back under it and while in that position, the plaintiff ran under the bottom section to untangle some lines and the section fell, injuring the plaintiff.

The plaintiff first pleaded ten separate acts of negligence which he contended defendant was guilty of as being a proximate cause of plaintiff's damages, then pleaded in the alternative that the plaintiff was entitled to rely on the doctrine of res ipsa loquitur. Plaintiff alleged the defendant was negligent in failing to keep a proper lookout for the safety of the plaintiff; in failing to have the derrick it was moving properly supported; in having a defective clutch on its truck; in failing to properly engage the winch clutch in gear; in failing to check to see and determine if such winch clutch was properly engaged before using said winch to lift the bottom section of the derrick; in throwing the switch or lever on the winch clutch while the derrick was suspended in the air thus disengaging said winch clutch while the plaintiff was under the derrick; in disengaging the gear on the winch while said derrick was suspended in the air; in operating the truck with a defective winch clutch when it knew or by the exercise of ordinary care should have known of its defective condition; in failing to properly set the brakes on the winch so as to prevent the bottom section of the derrick from falling rapidly to the ground; and in operating said winch with defective brakes.

The plaintiff testified it was his job to get the derrick ready to be loaded but that defendant did the actual loading and hauling off and that he, the plaintiff, had nothing to do with the loading and hauling off. Plaintiff further testified that it was his job to tie off the lines inside of the derrick after it was loaded and you could not tie the lines up before the bottom section was loaded on the middle section. It was Trio Transport, Inc.'s job to load and transport the derrick. Terry and Eaton were the employees of defendant. Eaton was in charge of the loading of the derrick. After the bottom section was raised into the air the long line fouled and the plaintiff, an employee of the owner of the derrick, immediately ran under the bottom section to keep the lines from being cut or snagged, but the line would not have kept the derrick from being loaded. It was while the plaintiff was under this section of the derrick that it fell and injured the plaintiff.

The only evidence in this record as to what caused the derrick to fall is that the dogs on the clutch on the winch kicked out. Eaton was asked by the plaintiff's attorney, 'Tell me what you think happened.' Eaton's reply was that he knew what happened but he didn't know what caused it. Then he testified the dogs kicked out. There was other evidence to the effect showing that the clutch had dogged out. Under the finding of the jury there were only two theories upon which a judgment could be based in favor of the plaintiff. The first three findings were based upon the rule of res ipsa loquitur. In answer to the first issue the jury found that the winch and truck were under the exclusive control and management of the defendant. That is not a disputed issue, as defendant's own evidence admitted that to be correct. In answer to Issue 2 the jury found the falling of the derrick was due to the negligence of the defendant, its agents or employees and, third, that such negligence was a proximate cause of the falling of the derrick.

After the plaintiff had rested the defendant filed a motion for an instructed verdict based upon the fact that res ipsa loquitur had gone out of the case and that there was no evidence of sufficient probative force to justify the submission of any issue relating to specific acts of negligence. A like motion was presented when both parties announced that they had closed. Both motions were overruled .

By defendant's fifth point of error it is contended that the court erred in refusing to disregard the jury's findings in Special Issues Nos. 2, 3, 10, 11 and 12 and to enter a judgment for the defendant because there was no evidence that the defendant was negligent or that his negligence was a proximate cause of plaintiff's injuries.

The only other issues other than under the rule of res ipsa loquitur that were found in favor of the plaintiff were Issues 10, 11 and 12. In answer to these issues the jury found that Terry failed to determine if the winch clutch was properly engaged after he threw the toggle switch, if he did; that such was negligence and was a proximate cause of the falling of the derrick. The jury found further that it was not an unavoidable accident.

We must first consider whether the rule of res ipsa loquitur is applicable to the facts herein. There are many cases discussing that rule but few are of value here as each case must be determined on its own peculiar facts. The doctrine of res ipsa loquitur, meaning the thing speaks for itself, is a qualification of the general rule that negligence is not to be presumed but must be affirmatively proved. It is stated in the case of Longoria v. Violet Gin Company, 309 S.W.2d 484, (Tex.civ.App.--San Antonio, 1958, writ ref'd n.r.e.) as follows:

'The evidence was insufficient to invoke the doctrine of res ipsa loquitur, in that it fails to show that the injury could only have occurred by the negligence of Jerome Jalufka or one of his agent, employees or servants. McClish v. R. C. Young Feed & Seed Co., Tex.Civ.App., 225 S.W.2d 910; Rounsaville v. Bullard, 154 Tex. 260, 276 S.W.2d 791; Comet Motor Freight Lines v. Holmes, Tex.Civ.App., 175 S.W.2d 464; Montgomery Ward & Co. v. Sewell, 5 Cir., 205 F.2d 463, 38 Am.Jur. 996; Alley v. Texas Electric Service Co., Tex.Civ.App., 134 S.W.2d 762; Wichita Falls Traction Co. v. Elliott, 125 Tex. 248, 81 S.W.2d 659.'

The evidence in this case clearly shows what happened. The dogs kicked out causing the derrick to fall. Immediately after the accident here in question the same truck and winch were used to load the derrick in the same manner as before and no trouble was encountered. After the accident the winch was inspected by two or three disinterested parties and the truck and winch had been in continuous use from some time thereafter. Nothing had even been found wrong with it. Terry, the only one in charge of the truck and winch, had raised the derrick to about ten feet in the air and had stopped it and applied the instruments to hold the derrick and had turned around and was not touching any of the...