Ford v. Fluor Engineering & Constructors, Inc.

711 S.W.2d 327, 1986 Tex. App. LEXIS 7824

Opinions

OPINION

BURGESS, Justice.

L.T. Ford (Ford) sustained an injury while working at the Texaco Refinery in Port Arthur, Texas. He was a dump truck driver hired by H.W. Campbell Company to haul material from a construction site. Mr. Ford was injured when a board went through the bed of his truck, striking the cab while he was seated in the driver’s seat. The board was being loaded into the dump truck by an equipment operator employed by another subcontractor, Lawson Equipment Rental (Lawson) under the direction of Fluor Engineers, Inc., (Fluor) the general contractor.

The case was tried to a jury which found (1) Fluor negligent in its decision to load the boards with the tailgate of the dump truck raised, (2) such negligence was a proximate cause of Ford’s injuries, (3) Lawson negligent in failing to keep a proper lookout while loading the dump truck, (4) such negligence was a proximate cause of Ford’s injuries (5) the percentage of negligence should be apportioned 60% to Fluor and 40% to Lawson, and (6) that Ford should be compensated $1500.00 for past pain and suffering, $500.00 for future pain and suffering, $25,000.00 for loss of earnings in the past, $78,000.00 for loss of earning capacity in the future, and $8,000.00 for past medical expenses. The jury also found that Ford was a borrowed employee of Fluor. The jury refused to find any negligence on the part of Ford.

After the jury’s verdict, Ford moved for judgment on the verdict and both Fluor and Lawson moved for judgment notwithstanding the verdict. The trial court granted both of the motions for judgment n.o.v.. The points of error allege error in refusing to grant judgment in favor of the plaintiff and granting the judgment n.o.v. in favor of the defendants.

To sustain the granting of a judgment notwithstanding the verdict, it must be determined that there is no evidence upon which the jury could have made the findings relied upon. In acting on the motion, all testimony must be viewed in a light most favorable to the party against whom the motion is sought and every reasonable intendment deducible from the evidence is to be indulged in that party’s favor. Trenholm v. Ratcliff, 646 S.W.2d 927 (Tex.1983). After reviewing the evidence we can find no evidence that Lawson’s employee was negligent in his lookout. It was uncontroverted that the operator could not see in the back of the dump truck when the tailgate was raised. Insofar as lookout is concerned, all any reasonable prudent operator could do under the same or similar circumstances, was to watch the load from the time it was picked off the ground until the time it was lowered into the dump truck. Lawson’s operator may have been negligent in some other manner, but as to lookout, he was doing all he could do under the circumstances of the tailgate being raised. Therefore, the trial court did not err in granting that portion of Lawson’s motion concerning their negligence.

The question of whether the dump truck being loaded with the tailgate raised constituted negligence was controverted. There is evidence to support this finding of the jury. There was testimony that it was Fluor’s operating foreman who made the decision to haul this particular type load with a dump truck. Further, it was Fluor’s decision to have the trucks loaded with the tailgates raised. Thus, Fluor had a duty to exercise reasonable care. Redinger v. Living, Inc., 689 S.W.2d 415 (Tex.1985). There was testimony that it was customary to remove the tailgates of dump trucks when loading boards of this type and that it was safer to load the boards on a flat-bed trailer rather than a dump truck with the tailgate on. This is sufficient evidence to show a deviation from the standard of care. The trial court erred in granting Fluor’s motion for judgment n.o.v.

Fluor, in their brief, urge no reply points as to the jury’s findings on the damage issues. Nor does Fluor urge any cross-points based upon the jury’s findings of borrowed servant. Therefore, we will proceed to enter the judgment the court below should have entered.

It is THEREFORE, ORDERED, ADJUDGED and DECREED that L.T. Ford, take nothing from Lawson Equipment Rental. It is further ORDERED, ADJUDGED and DECREED that L.T. Ford have judgment against Fluor Engineering and Constructors, Inc., in the amount of $113,000.00 and for interest at the legal rate from the date of the original judgment. All costs are adjudged against Fluor Engineering and Constructors, Inc.

The Court has determined that the foregoing opinion does not meet the criteria for publication set out in TEX.R.CIV.P. 452, sec. (b); consequently, it is ORDERED that the Clerk shall make distribution of the opinion only to the persons specified in TEX.R.CIV.P. 456, but a copy may be furnished to any interested person. This opinion shall not be cited as authority. TEX.R. CIV.P. 452, sec. (f).

REVERSED AND RENDERED.