Jackson v. Houston E. & W. T. Ry. Co. , 1927 Tex. App. LEXIS 178 ( 1927 )

WALKER, J.

Appellant, while in the discharge of his duties to appellee as freight conductor, received the injuries forming the basis of this suit. We quote as follows from his petition:

“Plaintiff alleges that all of his injuries and damage sustained directly and proximately resulted from one or more of the following acts of negligence, operating either singly or concurrently, to wit:

“ (a) The defendant, the Houston East & West Texas Railway Company, was negligent in failing to exercise ordinary care and prudence to provide the plaintiff a reasonably safe place and premises on which to perform his services as conductor for the said railway company.

“(b) The defendant, the Houston East & West Texas Railway Company, was negligent in failing to exercise ordinary care and prudence to provide the plaintiff a reasonably safe place and premises on which to perform his services as conductor for the said railway company.

“(c) The defendant, the Houston East & West Texas Railway Company, was guilty of negligence in that it furnished and required the plaintiff as conductor to handle in his train and carry and place on Miller’s Spur, at the side of said platform or slcidway, freight car, the sides of which were bulged and swollen, and thereby imperfect, unsafe to handle, and defective, and in such condition that the same was unsafe and dangerous to handle in the manner in which it became necessary for plaintiff and the train crew to handle said car, under the circumstances.

“(d) The defendant, the Houston East & West Texas Railway Company, was guilty of negligence in constructing and maintaining the platform or skidway in such close proximity to the spur track as not to allow the free and safe passage of freight cars over said spur' track along by the side of said platform or skidway.

“(e) The defendant, the Houston East & West Texas Railway Company, was guilty of negligence in the construction of the spur track in that, it was constructed so as to curve along at points immediately opposite the edge of the platform or skidway, and the same was unlevel, thereby causing the ends of the cars to be thrown outward and against the edge of the platform as they were propelled over said spur track.”

The facts were that, while appellant was standing on a dollyway near an industrial switch constructed for the use and benefit of the Martin Wagon Company, the dollyway was hit by a box car with bulging sides, tearing it down and severely injuring appellant. There was eyidence that a loose plank in the dollyway, and possibly some skid poles, negligently left on or near the dollyway by the Martin Wagon Company, contributed to the accident. As originally instituted, the suit was against both appellee and the Martin Wagon Company, but, before announcing ready for trial, appellant dismissed as to the Martin Wagon Company. Appellee’s answer was a general denial, plea of contributory negligence, and that the injuries were the result of the negligence of the Martin Wagon Company.

On a trial to a jury, the following issues were submitted and answered as indicated:

“Special issue No. 1: Was tbe defendant negligent in ■ permitting the loading dock to remain in such close proximity to the spur track? Answer: Yes.

“In the event you have answered special issue No. 1 ‘Yes,’ and in that event only, then you will answer special issue No. 2: Was such negligence, if any, a proximate cause of the accident and resulting injuries to the plaintiff? You will answer this ‘Yes’ or ‘No.’ Answer: No.

“Special issue No. 3: Was the plaintiff guilty of contributory negligence in going upon and remaining upon the loading dock for the purpose of giving the signals? You will answer this ‘Yes’ or ‘No.’ Answer: Yes.

“In the event you have answered special, issue No. 3, ‘Yes’ and in that event only, then you will answer special issue No. 4: Was such contributory negligence, if any, a proximate cause of the plaintiff’s injuries? You will answer this ‘Yes’ or ‘No.’ Answer: Yes.

“Special issue No. 5: Were the plaintiff’s injuries, if any, due to one of the risks ordinarily incident to the business in which he was engaged? Answer: Yes.

“Special issue No. 6: What sum of money, if paid now, would be a fair and adequate compensation for the injuries alleged and proven, if any, to have been received by the plaintiff on the occasion in question, taking into consideration exclusively the following elements of damages, and no others? * * * Answer: “$4,000.”

On this verdict, judgment was rendered against appellant.

On tbe trial, over appellant’s objection, appellee offered in evidence a, contract between it and tlie Martin Wagon Company, under which tbe Martin Wagon Company was to construct and maintain tbe dollyways and tbe industrial track, and to save harmless appellee from all damages resulting from its negligence. Without quoting from tbe evidence or the contract, it is sufficient to say that the issue was raised that appellant’s injuries' were contributed to by the negligence of the Martin Wagon Company, and that the provisions of the contract offered in evidence made it liable to reimburse appellee for any damages that appellant might recover.

As the Martin Wagon Company was not a party to this suit at the time it was tried, and as no issue was before the jury as to the contractual relations between it and appellee, the admission of this contract in evidence constituted reversible error. This contract undertook to and did delegate to the Martin Wagon Company the general duty fixed by law upon appellee to furnish appellant with a reasonably safe place to work, and with reasonably safe tools and equipment with which to work, binding it to indemnify appellee for any and all damages resulting from its default. The duties imposed upon the Martin Wagon Company by this contract were due primarily by appellee to appellant, and were nondelegable, 'therefore this contract was irrelevant and immaterial as to any issue before the jury, and could and did have the effect of confusing the jury and misleading them as to the duties owed by appellee to appellant. Having erroneously admitted the contract, the court did not follow it with his charge defining and limiting its application to the mutual duties owed by appellee and the Martin Wagon Company to each other, nor did the charge even undertake to define appellee’s duties to appellant, other than by defining “negligence,” the exercise of “ordinary care,” and “proximate cause.” Having erroneously admitted this contract, by which appellee had undertaken to shift its duties to appellant to the care and keeping of the Martin Wagon Company, the court did not instruct the jury that these duties were nondelegable. The reception of this evidence was clearly erroneous, and without a qualifying charge was clearly reversible. Corpus Juris, vol. 39, p. 285; Memphis Cotton Oil Co. v. Gardner (Tes. Civ. App.) 171 S. W. 1085; Hugo, etc., v. Paiz, 104 Tex. 563, 141 S. W. 518; Lantry v. McCracken, 105 Tex. 407, 150 S. W. 1156; Pacific Exp. Co. v. Shivers, 41 Tex. Civ. App. 291, 92 S. W. 46; Ruling Case Law, vol. 18, § 206, p. 730; Ruling Case Law, vol. 18, § 209, p. 735; Street on Personal Injuries in Texas, § 122, p. 210; Texas & P. R. Co. v. Fenwick, 34 Tex. Civ. App. 222, 78 S. W. 548; Chicago, R. I. & T. R. Co. v. Rhodes, 35 Tex. Civ. App. 432, 80 S. W. 869. We say “without a qualifying charge,” because that was the fact in this case, but we would not be understood as holding that such an error could be cured by a qualifying charge; we only applying our proposition to the facts of this case.

Not as tending to support our construction of this evidence and its erroneous reception, but to illustrate the practical effect it had on the mind of one of the jurors, a very intelligent gentleman, we quote as follows from his evidence adduced on appellant’s motion for new trial:

“When I was taken on this jury I took the oath to try the case according to the law as given me in the court’s charge and the evidence submitted to me under the rulings of the court; and I did do that as near as possible. As to whether I used any other testimony and evidence than that that I heard from the witness stand, I will state that I was influenced a little bit by that discussion in the jury room. When I was influenced by Mr. Jones, as I have stated, he was discussing the testimony of the case. As to whether the first versions I had of the testimony was not like the version I had after Mr. Jones’ explanation, I will state that I understood it different at first As to whether he explained it from the railroad’s standpoint and explained it from the testimony received here, I will state that I do not know whether that would be considered as testimony or not. We answered special issue No. 2 ‘No.’ As to whether that was according to the way we understood it, I will state that that is where we got that contract evidence. I said if it had not been for the Martin Wagon Company contract I would have answered that question ‘Yes’; as to whether I can explain to the court what that contract had to do with whether or not it was the proximate cause, I will state that that was the way I understood this. We had answered already that the railroad company was negligent in permitting that loading dock to stay there. Then the next question was, ‘Was such negligence, if any, a proximate cause of the accident and resulting injuries to the plaintiff?’ We answered that ‘No.’ As to what part the Martin Wagon Company contract would have to do with answering that question, I will state that here is the way we discussed it: Those two planks in between there on the loading dock the evidence showed would sometimes get loose and probably slip a short ways, and while we discussed — I discussed it that that was a proximate cause because of the loading dock remaining close there, and this came in here and struck this plank, and some of the jurors referred then to this contract, that it did not have anything to do with the case, because the Martin Wagon Company had a contract, and the instrument says that they must keep this loading dock eight feet six inches from the middle of the track, and that plank slipped forward and caused the ear to catch, and had nothing at all to do with the railroad company, and because the contract led me to believe that the Martin Wagon Company would have been liable for this thing here projecting and not the railroad company. As to whether, as soon as the testimony was explained to me, as introduced, and I understood, I changed and answered ‘No,’ I will state that I did that a little on account of that contract. As to whether that would be my verdict now if I rendered and understood it, I will state that, if that contract had not been entered into, I would not have answered it like I did and would not yet. The contract was in evidence, and, after I understood the testimony and It was explained to me, I answered it ‘No.’ As to whether I answered it from the way I understood the evidence to be, I will say, with the introduction of the contract, ‘Yes.’ ”

This case has been pending on our docket for more than a year. At a previous day of this term we ordered it dismissed for want of prosecution on motion filed by appellee. However, the case was reinstated on motion of appellant. Twenty days before this case was set for submission,’ appellant filed his brief herein, giving appellee a copy of the same. A few days before submission, appellee renewed its motion to dismiss on the ground that appellant had not filed his brief within a reasonable time, so that the same could be answered by submission day. This motion is overruled. Under the statement made by appellee, it had the full twenty days allowed by the rules in which to file its brief. It would be an extraordinary holding that the case must be dismissed for want of prosecution when it affirmatively appears that appellee has 'been given all the time allowed it by the rules in which to brief its case.

Appellee, by its motion', showed reasonable grounds for a postponement, but not for a dismissal of the case. However, it did not ask that the submission be postponed, and made appearance neither by its attorney nor by brief.

For the error discussed', the judgment of the trial court is reversed, and the cause remanded for a new trial.