Louisiana & Arkansas Railway Co. v. Gary

780 S.W.2d 413, 1989 Tex. App. LEXIS 2447, 1989 WL 113204
CourtCourt of Appeals of Texas
DecidedSeptember 19, 1989
DocketNo. 9695
StatusPublished

This text of 780 S.W.2d 413 (Louisiana & Arkansas Railway Co. v. Gary) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Louisiana & Arkansas Railway Co. v. Gary, 780 S.W.2d 413, 1989 Tex. App. LEXIS 2447, 1989 WL 113204 (Tex. Ct. App. 1989).

Opinion

GRANT, Justice.

Louisiana & Arkansas Railway Company (L & A Railway) appeals from an adverse judgment in an action brought by Harry Gary for a personal injury under the provisions of the Federal Employers’ Liability Act. 45 U.S.C.A. §§ 51-60 (West 1986).

The cause was tried without a jury, and the court filed findings of fact and conclusions of law. The court found that negligence proximately causing Gary’s injury was seventy percent attributable to L & A Railway and thirty percent attributable to Gary. After making appropriate reductions in damages found by the court for Gary’s negligence, the court awarded Gary $603,149.81.

The injury occurred on November 26, 1984, at Fox Switch near Karnack, Texas. At the time of the accident, Gary was thirty-five years of age and had been with the railroad maintenance-of-way department for over thirteen years. His duties included replacing cross-ties, laying rail, unloading rail, and performing other heavy work.

L & A Railway contends that the trial court erred in rendering judgment in favor of Gary because there was no evidence to support the court’s findings of fact and conclusions of law numbers 3, 4, and 5 and because, as a matter of law, Gary’s negligence was the sole cause of his injury.

The review of evidence in an FELA case is governed by federal standards. This Court must determine whether the evidence was legally sufficient to support the verdict. Rogers v. Missouri Pacific Railroad Co., 352 U.S. 500, 77 S.Ct. 443, 1 L.Ed.2d 493 (1957); Atchison, Topeka & Santa Fe Railway Co. v. O’Merry, 727 S.W.2d 596, 599 (Tex.App.—Houston [1st Dist.] 1987, no writ). In principle, the “no evidence” test in state practice is not distinguishable from the federal standard. Both tests require valid findings of fact to be supported by more than speculation, conjecture, and possibility. Elgin, Joliet & Eastern Railway Co. v. Gibson, 355 U.S. 897, 78 S.Ct. 270, 2 L.Ed.2d 193 (1957); St. Louis Southwestern Railway Co. v. Greene, 552 S.W.2d 880 (Tex.Civ.App.—Texarkana 1977, no writ). A no evidence point is a question of law. In deciding a no evidence point, we consider only the evidence and the reasonable inferences therefrom, viewed in the most favorable light, that will support the findings. All evidence or reasonable inferences to the contrary are rejected. Glover v. Texas General Indemnity Co., 619 S.W.2d 400 (Tex.1981).

We shall first discuss L & A Railway’s contention that there was no evidence to support the trial court’s findings of facts and conclusions of law number three, which was entered as follows:

3. Albert Forgione was negligent in failing to exercise ordinary care in the loading and supervision of the loading of the rails onto the flatbed trailer. For-gione’s negligence resulted in the rails becoming entangled and thereby created a hazardous and unsafe place for the Plaintiff to perform his work. This negligence contributed and played a part in causing the injuries sustained by the Plaintiff.

On the day in question, Gary and James Caesar, using hand tools, were unloading thirty-nine-foot rails weighing three-quarters of a ton each from a flatbed truck. Gary had unloaded rails using the hand method on many occasions before the day of the injury. The first two rails on the top tier rolled off without any problem. .The third rail had dropped between the rails on the bottom layer, was tilted at an angle and was in a bind between the other rails. Gary injured his back while he was trying to untangle the rails with a rail turner.

Truck driver Albert Forgione had supervised the prior loading of the truck. For-gione put slats beneath the upper layer of [415]*415rails to make them easier to roll off the truck and to keep them from dropping down between the rails on the bottom stack. Gary testified that on the day of the accident, the wooden slats on the truck on which the rails rested were broken up. He testified that:

Q. And the way they’re supposed to keep them that way is by putting these boards or slats between them?
A. Put the boards or slats between them and use good boards, you know, like on the bottom they have four by fours and then when they got them to the top they come up with one by fours, and it was pine, you know, and you know you set all the weight on pine, you know how pine is soft wood and they just busted up.
He further testified that:
Q. What about using pine instead of something like oak?
A. Oh, yes, see that’s another problem. They used them pine one by fours and they just mashing (sic) down and it busted them up.
Q. They just weren’t sturdy enough to handle sixteen hundred pound rails — ?
A. That’s right.
Q. — being set down on them; is that right?
A. That’s right.
Q. Now, it was because the boards weren’t the right size and the right materials that you believe they broke — ?
A. Yes, sir, I believe that; that’s right.
Q. —when they were dropping these rails on the truck?
A. When they were loading them on the truck, they busted them — had to break them.
Q. Now, and it was because the boards were broken that the rails had gotten entangled?
A. Yes, sir, they — that’s how it fell. We didn't have nothing separating the top from the bottom by — .

Forgione agreed that the rail that became entangled would not have dropped down into the bottom layer if the right size, strength and length slats had been used. He further conditioned this on the truck being properly loaded and tied down, and the load being properly hauled to the location. Forgione testified that when good strong boards are used between the layers of rail, the rail will not get entangled.

L & A Railway takes the position that this evidence amounts to no more than a res ipsa loquitur inference. Gary did not plead res ipsa loquitur. A res ipsa loquitur inference arises when there is proof that the instrumentality causing the injury was in the defendant’s exclusive control and the accident is one which would not ordinarily occur in the absence of negligence. The evidence in the present case deals with a specific act of negligence: the failure to select boards of the proper size and material to withstand the weight of the rails. Evidence was introduced without objection that the boards selected and used by For-gione in the loading were not the right size nor the right material to be sturdy enough to hold the weight of the rails. There was also testimony that for that reason the boards used for slats had broken up because they were not sturdy enough to hold the weight of the rails.

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Related

Rogers v. Missouri Pacific Railroad
352 U.S. 500 (Supreme Court, 1957)
Glover v. Texas General Indemnity Co.
619 S.W.2d 400 (Texas Supreme Court, 1981)
Atchison, Topeka & Santa Fe Railway Co. v. O'Merry
727 S.W.2d 596 (Court of Appeals of Texas, 1987)
St. Louis Southwestern Railway Co. v. Greene
552 S.W.2d 880 (Court of Appeals of Texas, 1977)
Thomson v. Texas & Pacific Railway Co.
353 U.S. 926 (Supreme Court, 1957)
Elgin, Joliet & Eastern Railway Co. v. Gibson
355 U.S. 897 (Supreme Court, 1957)

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Bluebook (online)
780 S.W.2d 413, 1989 Tex. App. LEXIS 2447, 1989 WL 113204, Counsel Stack Legal Research, https://law.counselstack.com/opinion/louisiana-arkansas-railway-co-v-gary-texapp-1989.