Mitchell v. Missouri-Kansas-Texas Railroad

743 S.W.2d 666, 1987 Tex. App. LEXIS 8285, 1987 WL 117

• Court: Court of Appeals of Texas
• Decided: September 10, 1987
• Docket: No. 01-86-00564-CV
• Status: Published

Opinions

OPINION

WARREN, Justice.

This is an appeal from a take-nothing judgment in an F.E.L.A. case.

In two points of error, appellant claims that the trial court erred in submitting, over his objection, the following instruction to Special Issue No. 3:

In answering this issue, you are instructed that, before negligence, if any, can be established against the Defendant, (sic] Railroad, it must be shown that the Defendant Railroad, through its officers, agents, and/or employees, knew, or, in the exercise of ordinary care, should have known of an unsafe condition, if any.

Appellant claims that the instruction was error because it:

(1) improperly instructed the jury that the plaintiff must prove foreseeability in an F.E.L.A. case; and

(2) the instruction amounted to a comment on the weight of the evidence, because it instructed the jury that the plaintiff must prove foreseeability.

Appellant was injured when he allegedly slipped while boarding a moving engine in the dark. He claimed that the steps, platform, and grab iron were coated with ice, which caused him to slip and fall while attempting to board the engine.

Plaintiff's formal pleadings, among other things, alleged that that ice-coated engine constituted a violation of the Boiler Inspection Act, and constituted a violation of ap-pellee’s duty to furnish appellant with a safe place to work.

The jury found that there was ice on the engine, but failed to find that the steps, platform, or grab iron on the engine were in an unsafe condition.

Appellant’s initial contention is based on the premise that the instruction of which he complains requires the plaintiff to prove foreseeability. We construe the instruction as one pertaining to knowledge or notice of a defective or dangerous condition, rather than foreseeability.

The instruction given by the court in our case is quite similar to the one refused by the trial court, but approved by the Sixth Circuit Court of Appeals in Baynum v. Chesapeake and Ohio Railway, 456 F.2d 658 (6th Cir.1972).

In Miller v. Cincinnati, New Orleans and Texas Pacific Railway, 317 F.2d 693, 695 (6th Cir.1963), the court restated the rule that in F.E.L.A. actions, where negligence is essential to recovery, a defendant could not be convicted of negligence for a defective condition, absent proof that such defect was known, or should, have been known by the defendant with an opportunity to correct it. In Rogers v. Missouri Pacific Railroad, 352 U.S. 500, 77 S.Ct. 443, 1 L.Ed.2d 493 (1957), and Wilkerson v. McCarthy, 336 U.S. 53, 69 S.Ct. 413, 93 L.Ed. 497 (1949), the Supreme Court of the United States affirmed the proposition that actual or constructive notice of a defect by the defendant must be proved before recovery can be had on negligence arising out of the defect.

Appellant’s first point of error is overruled.

Appellant’s second point of error, urging that the foreseeability charge amounted to a comment on the weight of the evidence must also be overruled because we have held that the instruction pertained to notice rather than to foreseeability.

Appellant makes the logical argument that if he was required to prove notice of the defect as a prerequisite to a recovery on his negligence issue, then ap-pellee likewise should be required to prove that appellant had notice of the defect before he could be adjudged contributorily negligent. We agree with this reasoning, but note that appellant requested no instruction regarding his knowledge of the defects. Any such complaint is waived. Tex.R.Civ.P. 273.

Appellant’s second point of error is overruled.

The judgment is affirmed.

LEVY, J., dissents.