Texas Steel Company v. Recer

508 S.W.2d 889, 1974 Tex. App. LEXIS 2288
CourtCourt of Appeals of Texas
DecidedMarch 15, 1974
Docket17482
StatusPublished
Cited by11 cases

This text of 508 S.W.2d 889 (Texas Steel Company v. Recer) 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
Texas Steel Company v. Recer, 508 S.W.2d 889, 1974 Tex. App. LEXIS 2288 (Tex. Ct. App. 1974).

Opinions

OPINION

MASSEY, Chief Justice.

On or about September IS, 1969, Carl J. Recer, an employee of Pangborn Corporation sustained personal injuries while working in the plant of Texas Steel Company in Fort Worth, Texas. In connection with such work the Pangborn Corporation had manufactured a large steel parts cleaning unit which Texas Steel was in the process of installing in its plant, and Recer (pursuant to contractual agreement between Pangborn and Texas Steel) was present for the purpose of consultation and aid in the installation of the unit. To clarify: Recer, an employee of Pangborn Corporation, was for the benefit of Texas Steel Company on its premises pursuant of a provision of contract between his employer and Texas Steel, owner of the premises. In other words he was an “invitee”.

Within the Texas Steel plant there were cranes for the purpose of moving heavy metal from the general directions of north to south, and from south to north. These operated by rolling suspended from overhead trolleys. For the purpose of both their movement and the pick up and deposit of material there was a cab within which an operator was situated to control such.

Most of the unit manufactured by Pang-born was in place, and certain machinery which was a part thereof and located on its top was already installed. There was a “landing” or platform proximate to the machinery intended for purposes of attending installation or repair, etc. of such machinery. The situation of this platform was such that a man of ordinary height standing upon it was squarely in the path of the cab portion of the aforedescribed crane, in the event its movement was either from north to south or from south to north.

At the request of one of the foremen of Texas Steel, Recer had accompanied him in a climb to the top of the Pangborn unit aforementioned for some purpose connected with the machinery on top of the unit. The two men were standing on the platform giving their attention to the machinery when a crane operator (employee of Texas Steel) moved the crane toward either the north or the south. He did not observe Recer or the man with him on the platform. Neither Recer or the man with him observed that the crane was being so moved. As the cab of the crane passed over the platform and machinery aforede-scribed the cab struck the upper part of the bodies of Recer and the man with him knocking them over. The cab operator did not know that the event had occurred until he had moved past the men on the plat[892]*892form of the Pangborn unit and was some distance removed. This is mentioned to clarify the fact that extremely heavy machinery was involved.

Recer brought suit in tort against Texas Steel on the theory that the personal injuries he had sustained as the result of being struck by the cab of the crane were proximately caused by its negligence. Trial was to a jury and judgment for damages was rendered based upon the verdict returned. From this judgment Texas Steel appealed.

We affirm.

The acts of negligence found to have been committed by Texas Steel, which was also found to have amounted to a proximate cause of the event culminating in Re-cer’s injuries, were: the failure of the crane operator to keep a proper lookout; the failure of such operator to sound a warning of the approach of the crane upon the place where Recer was standing; the failure of Texas Steel to instruct the crane operator as to appropriate .warning measures to be given by the operator to individuals in or near the path of the crane when it is moving; the failure of the crane operator to stop the crane; and the failure of Texas Steel to warn Recer that the crane would be operating in or near the area where he was struck. The jury also found that Recer was in fact injured as result of the occurrence.

Texas Steel contended that Recer was guilty of contributory negligence proximately causing the occurrence and his injuries in consequence. However in its findings the jury refused to find that he was guilty of any act of contributory negligence. The jury also, by its answer in the negative, or “No”, found that at the time and upon the occasion in question Recer was not a “borrowed employee” of Texas Steel. Though having found that immediately prior to the occurrence in question Recer was in a position of danger, the jury refused to find that Recer had voluntarily assumed risk of injury in getting into or remaining in such position.

Texas Steel requested the submission of a special issue, and objected because of the absence of a special issue, which would inquire of the jury — with the burden of the issue placed upon Recer— whether the occurrence was the result of “unavoidable accident”.

According to practice and usage of several years ago it would have been reversible error not to submit such an issue. However, since the decision in Yarborough v. Berner, 467 S.W.2d 188 (Tex.Sup., 1971) this is no longer part of our law. We recently had occasion in Austin Road Company v. Evans, 499 S.W.2d 194, 199 (Fort Worth Civ.App., 1973, writ ref, n. r. e.) to write thereon. Though it is the law that a plaintiff in such character of suit is obliged to prove that the event was not the result of unavoidable accident (as applied to the parties to the suit) that burden is discharged in jury findings upon special issues by which the plaintiff may be said to have discharged such necessarily included burden when he successfully establishes negligence in acts and/or omissions of the defendant and that such amounted to a proximate cause of the event and consequent injury. Here, by the definition of “proximate cause”, by the manner of special issue submission, and by the answers returned by the jury plaintiff is deemed to have discharged the burden of establishing that the event was not the result of unavoidable accident.

We hold that as a matter of law Recer was an invitee, and that every issue presented to the jury as a fact issue was to be resolved as a matter of fact and not of law; further that each fact finding was raised by evidence of probative force and effect, and that none of the jury findings returned were against the great weight and preponderance of the evidence.

There was evidence of which Texas Steel complains relative to the fact that after the happening of the event it had placed a flashing light underneath the cab of the overhead traveling crane. This [893]*893came about as the result of photographs (which were taken and introduced by Re-cer some time after the occurrence) which showed the presence of such a light having been introduced before the jury without objection, but which were later shown by Texas Steel to have been installed after the event.

Although there would be additional reason why no reversible error resulted we are of the opinion that there was support for the admission of the photographs and supplementary evidence which showed the presence of the later installed flashing light. Although reversing in 273 S.W.2d 603 the Supreme Court (1954) (at p. 610) approved the holding of this court upon the admissibility of photographs plus evidence bearing thereupon in explanation of a condition shown thereby different from that existent at time of an accident or occurrence. Driver v. Worth Const. Co., 264 S.W.2d 174

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Texas Steel Company v. Recer
508 S.W.2d 889 (Court of Appeals of Texas, 1974)

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508 S.W.2d 889, 1974 Tex. App. LEXIS 2288, Counsel Stack Legal Research, https://law.counselstack.com/opinion/texas-steel-company-v-recer-texapp-1974.