Opinion
No. 3880.
July 23, 1930. Rehearing Denied July 31, 1930.
Appeal from District Court, Harrison County; Reuben A. Hall, Judge.
Suit by Claude Perkins against the Texas Pacific Railway Company. From a judgment in favor of plaintiff, defendant appeals.
Affirmed.
The appellee brought the suit for damages for personal injuries, claiming that the sight of his right eye was destroyed as a result of the alleged negligence of a coemployee. The appellee and his coemployee were members of a section crew that were at work near Waskom ballasting the roadbed and realigning the rails of the main line track that appellant runs its trains over from Marshall, Tex., to Shreveport, La. The two men were shoveling gravel under the ties of the track, and then packing or tamping it. While the employee opposite appellee was packing or tamping the gravel under the tie in front of him a small stone or piece of gravel flew up and struck appellee in the right eye with force enough to destroy the sight of it. The petition alleged the following grounds of negligence: (1) "The employee opposite the plaintiff carelessly and negligently struck under the tie with his shovel, unnecessarily exerting great force and violence in said movement and striking the rocks in such manner as to force a piece of rock or gravel against and into the eye of the plaintiff," and (2) "that said employee working opposite the plaintiff did carelessly and negligently strike with great force and violence under the tie where the plaintiff was working with the shovel, and that because of said stroke with the shovel of such unusual violence and unnecessary force a piece of rock, ballast or other substance of some description was caused to strike the plaintiff in the eye." The defendant pleaded that the danger was open and obvious, and that the plaintiff knew, or in the exercise of ordinary care could have known, of the risk incident to performing the work, and assumed the risk of injury therefrom. The defendant further specially pleaded that the injury was the result (1) of an unaccountable accident, and (2) of a risk ordinarily incident to the employment.
The case was submitted to the jury on special issues, namely:
"No. 1. Do you find and believe from a preponderance of the evidence that Claude Perkins' eye was struck by a piece of gravel coming from the shovel of Robert Smith ?" Jury answer: "Yes."
"No. 2. Do you find and believe from a preponderance of the evidence that Robert Smith was negligent in the manner in which he used his shovel at the time Claude Perkins received his injuries, if any?" Jury answer: "Yes."
"No. 3. Was the negligence of Robert Smith a proximate cause of the injuries received by Claude Perkins?" Jury answer: "Yes."
"No. 4. Was the work of placing or shoveling the gravel under the ties being done or performed in the usual and customary manner at the time the plaintiff was alleged to have received his injury ?" Jury answer: "No."
"No. 5. Was the risk, if any, of being hit or struck by gravel that was being tamped or shoveled under the cross-ties one of the risks ordinarily incident to the work in which plaintiff was engaged?" Jury answer: "No."
"No. 6. Was the risk or danger, if any, of the gravel flying or bouncing when being tamped or shoveled under the ties in the manner in which you may find from the evidence that the same was being tamped or shoveled under the ties open and obvious so that the plaintiff, Claude Perkins, in the exercise of ordinary care, should have known thereof?" Jury answer: "No."
"No. 7. Was the flying or bouncing of the gravel, and its striking the plaintiff's eye, in the manner in which you may find from all the evidence that it did fly or bounce and strike the plaintiff's eye, an unavoidable accident?" Jury answer: "No."
The amount of damages found by the jury was $4,000. The above findings have support in the evidence.
According to the testimony of Robert Smith, who was the employee tamping the gravel, the injury to the appellee occurred as follows: "At the time this accident happened we had the track jacked up and were putting washed gravel under it. We had the track raised two or three inches. The cross-ties run north and south, and the track (rails) runs east and west. We Jacked the rails up so as to raise up the ties two or three inches. There was a lot of loose gravel that had been dumped and placed there for the purpose of putting it under the ties to raise up the track. We first put and filled the gravel under the ends of the ties after raising the ties, holding the rail so it would press against and hold the tie in position. After pushing the gravel up under each end of the tie it held the tie at the point or height where we wanted it, and that would leave a vacant space of two or three inches under the middle of the tie; and we would take the loose gravel and fill it up under the tie. That gravel had to be shoveled or pushed pretty hard to stay there and hold up the track. It was usual and customary to push it up under there and tamp it hard to hold the ties. It was usual and customary in doing that to use all our force to pack it under there. We used a shovel. * * * I was tamping the gravel on my side of the tie and Claude (plaintiff) was tamping the gravel on his side of the tie. We were all working on speed, and I made an awkward lick and my shovel kind of turned in my hand. In making that awkward lick some gravel flew up and Claude said, `Look and see what this is in my eye.' In making the awkward lick my shovel struck it and the gravel flew up. At the time Claude flinched and said `Oh! Look in my eye and see what is in it.' I looked in it and saw some grit. He said, `Look again.' I said, `There is nothing but a red place under the ball of your eye.' He continued to complain, and we went to a water-cart and poured water in it and washed it out. It was still red. At the time I made this awkward lick Claude was shoveling gravel under the tie. * * * I had almost finished my side of the work when Claude was hurt. By that I mean I had pushed the gravel under my side to where the gravel was about level to the top of the tie. The gravel was within about three inches from the top on my side. At the very time I made this awkward lick in shoveling the gravel I was tamping it there by the tie. * * * I was about three inches from the top. I continued to tamp it to keep it from getting slack. I was tamping it to the side of the tie. In order to tamp it that way I would be shoveling down. Claude was on his side and I was very near finished."
J. H. T. Bibb, of Marshall, for appellant.
Franklin Jones and Barret Gibson, both of Marshall, for appellee.
The assignments of error present, in effect, that the requested peremptory instruction should have been given the jury because (1) there was no negligence; (2) the injury was due merely to the risk ordinarily incident to the performance of the particular work; and (3) the injury was due to an unavoidable accident. It is believed that the trial court correctly passed the three points to the jury for decision. On the whole the conclusion that best fits all the circumstances is that the injury of the appellee arose, not from an unaccountable accident or from a risk merely incident to his employment, but from the negligence on the part of a fellow workman in tamping the gravel with too much force and rapid movements of the shovel. The undisputed evidence of Robert Smith, the fellow workman, accounts for the injury as follows: "We were all working on (with) speed and I made an awkward lick and my shovel kind of turned in my hand, and in making that awkward lick some of the gravel flew up, and Claude (plaintiff) said, `Look and see what is in my eye."' This evidence tends to show where the stone which struck appellee came from, and how and from what cause it flew out from the gravel which had been shoveled under the tie and was being packed or tamped. An awkward lick or stroke on the ground under the tie was made with the shovel, causing the shovel to turn in the hands of the workman and a stone to be thereby thrown up against appellee's eye. The presumption is raised, and perhaps a strong one, that the "awkward lick" or stroke made with the shovel at the time was due to the "speed" or quick movements made with the shovel in the packing or tamping of the gravel which lay beside or near the level of the tie. The evidence of the section foreman rendered it most improbable that either such awkward lick made with the shovel or the flying out of the stone at such a distance was not a result of negligence, but was merely incident or usual to the nature of the work being done at the time. According to the section foreman, "in doing that work it is unusual for gravel to fly upward when struck with the shovel. I never heard of any one getting their eye put out that way. Sometimes gravel will fly up and strike a man on the body, but I never heard of anybody being struck in the eye that way before. * * * In the ordinary way of shoveling gravel under the tie you would not expect it to fly up. If a man is using a shovel up near the top of the tie you wouldn't expect, in the ordinary movement of tamping the gravel, for gravel to fly up. It would look like carelessness if it did. * * * If a fellow is handling a shovel right you won't see any rocks (fly up). Before a rock would fly up it would be up to somebody to handle the shovel wrong." As may be seen, the section foreman affirmatively stated that, "in the ordinary movement of catching up (tamping)," a stroke or lick of the shovel against the gravel would not cause a stone to fly up so high as the eye of the person. As the foreman explains, when the section hand "is handling his shovel right" and does not "handle the shovel wrong," the packing or tamping of the gravel will not cause "gravel to fly up" upon the body of a person so high as the eye. At least, the jury were authorized to conclude, as is their province to do, that in packing or tamping the gravel with the shovel Robert Smith was handling it in too rapid strokes and with too much force, and in so doing was, under the circumstances, guilty of negligence proximately causing the injury. The court would not be warranted in holding as a matter of pure law that the circumstances are insufficient to show the injury to be due to any negligence.
By assignment of error No. 7 the appellant complains of special issue No. 2 because "there was no pleading supporting the issue submitted." Issue No. 2 reads: "Do you find and believe from a preponderance of the evidence that Robert Smith was negligent in the manner in which he used his shovel at the time Claude Perkins received his injuries, if any?" Though the issue is not phrased in the very words of the allegation, yet it does state the substance of the allegation. The petition set up that Robert Smith "carelessly and negligently struck under said tie with his shovel, unnecessarily exerting great force and violence in said movement and striking the rocks in such manner as to force a piece of rock or gravel against and into the eye of the plaintiff." The negligence specifically complained of was the act of "unnecessarily exerting great force and violence in said movement," meaning with the shovel. The basic fact counted on was not that the gravel, against which such force was used in tamping, had been placed "under the tie"; that was an incidental circumstance which, at most, could be a matter of evidence.
It is urged that there was error in giving the requested special charge A, because it was in the nature of a general charge. The charge complained of explained to the jury that, "in answering special issue No. 6," the "plaintiff was not required to anticipate the negligence, if any, of Robert Smith," etc. Special issue No. 6, to which the charge referred, required a finding by the jury of whether or not the plaintiff knew, or by the exercise of ordinary care should have known, of the risk of injury from flying gravel from "the manner in which" the tamping or packing of the gravel was being done. In the light of the undisputed evidence of the section foreman, the risk of injury was slight when packing or tamping gravel in the usual and ordinary way, and the appellee could not have been injured in the eye except from careless or negligent handling of the shovel by Robert Smith. As a matter of law, the appellee did not assume the entire risk regardless of whether or not Robert Smith was negligent in handling the shovel. It is believed that in the circumstances the submission of any issue relating to assumed risk was not warranted and the giving of the special charge was harmless and does not warrant a reversal. Railway Co. v. Casey (Tex.Civ.App.) 172 S.W. 729.
The court's main charge explained to the jury that in allowing damages for future benefits such sum should be made up on the basis of its "being paid now in cash," or the present value thereof. The appellant requested a special charge explaining to the jury as to damages for future benefits that "in determining the present value thereof you should take into consideration the rate of interest at which money can be safely and securely invested," etc. There was no testimony in the case showing or going to show "the rate of interest at which money can be safely and securely invested." Neither side offered evidence, as in Ry. Co. v. Moser (Tex.Civ.App.) 277 S.W. 722, of any specially prevailing or usual rate of discount, or what was the reasonable rate of discount. Had there been such evidence before the jury the special charge would have been applicable and should have been given. Ry. Co. v. Mosler, 275 U.S. 133, 48 S.Ct. 49, 72 L.Ed. 200. The court's main charge was quite broad enough, in the absence of such special evidence as to invest and discount, to authorize the jury, in their judgment and general knowledge, to make the discount for present payment at the legal rate of interest. The objection now complained of does not complain of the failure of plaintiff to make proof of discount. Therefore in the present case there was no affirmative error in the court's charge.
It is concluded that there is no reversible error in the record, and accordingly the judgment is affirmed.