Yarbrough v. Phillips Petroleum Company, 01-82-0218-CV
| Decision Date | 28 April 1983 |
| Docket Number | No. 01-82-0218-CV,01-82-0218-CV |
| Citation | 670 S.W.2d 270 |
| Parties | Randall YARBROUGH, Appellant, v. PHILLIPS PETROLEUM COMPANY, Appellee. (1st Dist.) |
| Court | Texas Court of Appeals |
Shirley M. Helm, Houston, for appellant.
J. Scott Crothers, Houston, for appellee.
Before DOYLE, WARREN and PRICE, JJ.
This is an appeal from a judgment granted by the trial court in favor of the appellee Phillips Petroleum Company (Phillips), upon its motion filed after the appellant had rested his case. Appellant's motion for rehearing was denied and judgment was entered for the appellee.
The appellant was employed as a pipefitter and rigging helper by Fish Construction Company (Fish), a contractor for Phillips. On the night of December 11, 1979, the appellant sustained a foot injury when he, his co-worker Eddie Roberts, and other Fish employees were lifting a 20-foot long section of pipe using a "cherry picker" supplied by Phillips. This machine usually hoisted a basket capable of carrying one or more individuals to work at various heights. The workers rigged the pipe for lifting by wrapping wire chokers around the pipe and attaching them to the cherry picker, which was then used to lift the pipe.
Once the pipe had been lifted about four feet, the appellant checked the rigging. While he was thus checking, the pipe fell and injured his foot. The appellant was taken to a hospital in Pasadena and treated for his injuries.
Eddie Roberts, a Fish employee who was operating the cherry picker at the time of the accident, testified that the cherry picker was owned by Phillips, but that Phillips had assigned it to Fish to be used at night. Both Roberts and the appellant testified that they were aware of a broken hook on the cherry picker, but neither reported it to Fish or Phillips. The appellant and the other pipefitters had successfully lifted two sections of pipe that night before the accident occurred. The appellant and Roberts testified that by using a shackle, the accident could, in their opinion, have been prevented, but no one attempted to find a shackle or use one before beginning to lift the pipe. Furthermore, no one attempted to use the procedure known as "mousing," i.e., wrapping wire around the hook to cover the eye of the hook when there is no latch. Later that night, after the accident, the other pipe fitters continued to use the cherry picker with the broken latch to successfully lift pieces of pipe.
At the outset we deem it important to discuss the action of the trial court in arriving at its judgment. At the close of the appellant's evidence, the appellee requested a motion for judgment which the court granted. In response to the appellant's request, the court filed findings of fact and conclusions of law.
The appellee's briefs and the appellant's supplemental brief seem concerned with the question of whether the trial court, in this non-jury case, had treated the appellee's motion for judgment as if it were a motion for a directed or instructed verdict.
In Goodale v. Goodale, 497 S.W.2d 116 (Tex.Civ.App.--[1st Dist.] 1973, writ ref'd n.r.e.), this court recognized rule that "in determining the propriety of a judgment rendered for the defendant at the conclusion of the plaintiff's case in a non-jury trial, the same standard should be used as would be applicable to a motion for an instructed verdict in a jury case."
Thus, at that stage of the proceedings, the trial court is limited to a consideration of whether the evidence is legally sufficient to raise an issue of fact on each element of the plaintiff's case. If the trial court grants a preemptory judgment for the defendant at that time, the reviewing court must accept as true all evidence, which when liberally construed in the plaintiff's favor, tends to support his contention, and must indulge every intendment in the plaintiff's favor and against the...
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