*1 objection out pointed duress. clarity wherein defini-

with sufficient properly

tion was in error. The error was

preserved. Baggage Cab Yellow &

Green, (1955). judgment the Trial Court is re-

versed and the cause is remanded to

Trial Court.

PEDEN, J., participating.

MISSOURI PACIFIC RAILROAD COMPANY, Appellant, SPARKS, Appellee.

Jake L.

No. 45. Appeals

Court Civil Texas. (14th Dist.). Houston

Dec. 1967.

Rehearing Jan. Denied *2 Holloway, Terrell,

Thomas S. A. Gordon Sewell, Parrott, Riggs, & Harman Junell Houston, appellant. Phelps, Kilgarlin Kilgarlin, & W. W. Snell, Houston, appellee. BARRON, lawsuit. At the time received Justice. complains, of which he here brought This suit L. Jake process lifting bag of mail against defendants, Rail- Missouri Pacific on board Train 50 of the Company Railway Express Agen- road *3 run from Houston Rouge, to Baton Louisi- cy, Inc., Employers’ Lia- under the Federal Sparks bag ana. lifting was a of bulk mail bility Act, U.S.C.A., 45 51-59. Sections in in doorway order to stack it a that it so Sparks alleged injured that he was on Rouge, could be unloaded at Baton when January 25, working 1963 in a rail- while he felt a burning stinging or in sensation road car of a Missouri Pacific train. area groin, by bulging. of his followed Defendant, Railway Express Agency, His subsequently diagnosed condition was as (hereinafter REA) called received in- an inguinal left inguinal hernia with an indirect structed verdict ground on the that it was extending hernia into cord structures. protected from the suit herein work- operated He was on and the hernia was compensation men’s coverage. The case repaired, found and and the left testicle was was jury allega- submitted to the under operation place removed. The took on Sparks employee tions that an of Jake 5, 1963, February following Sparks and the Missouri question, Pacific at the time in remained off work for three months. some and thus came under F.E.L.A. The He testified that he continued to have every liability answered in favor of issue shooting pain in leg, left his his and after the appellee-plaintiff, Sparks. In answer to work, return to he felt a on strain his left the damage issue, stated, “20,000.- leg. quit He August 30, work after on 1963 00 suit as demands.” trial court enter- ma,ny years joint baggage- work as a train judgment ed jury’s on the against verdict man and messenger. subsequently He $20,000.- Pacific in the amount of employed patrolman. as a school Trial was 00, overruled Missouri Pacific’s amended years injury. almost four after the date of trial,

motion for new Pacific appealed has Appellant to this Court. at- The trial court submitted four tacks the judgment of the trial court 31 groups liability of jury. Each issues to the points error, grouped of and collected as 10 appellee. in answered favor of propositions, appellant each of which relies 7, Special inquired Issues 8 and 9 whether upon judgment for reversal below. just prior occasion made the basis of suit, 1967, plaintiff At the the train on which the January of trial on 19, time years working jerk; made a age. was 68 sudden whether He testified such negligence; action was Fargo went in whether to work for Wells such negligence, any, in joint baggageman as a if was a cause train and mes- part injuries. senger, working plaintiff’s whole or in board the Southern situation, But in stop slowing a sudden Giddings. run between Hearne or plaintiff prove During I, must than the mere Fargo World more War Wells was con- fact jerked that the train Railway Express solidated slowed. There into American or nothing why is later the name REA record to changed Ex- show press. jerked slowed, train alleged capacity In or whether there was joint as a it, reason for an emer baggageman train whether there was messenger, Fe, gency, slowing jerking has or whether the worked on the Santa Southern extraordinary. was unusual or There must Pacific and Pacific railroad com- be panies. 1931, appellant’s negligence some evidence He in he went testified case, jerking a F.E.L.A. and the to work instant joint baggageman as a train slowing any is without standard which messenger with Missouri Pacific and work- ordinary line, care can be measured. Herdman although ed on that on several differ- Pennsylvania Ry. Co., runs, v. 352 U.S. ent retirement until took his York, S.Ct. 1 L.Ed.2d New New following the basis case, Henagan, Haven etc. v. 81 S. the Texas court In Arnold Ct. rail general L.Ed.2d Fort & D.C. that a that the Worth held Bell, (Tex.Civ. Co. v. road safe S.W.2d failed to furnish ref; App.), Smith, place err. Taber cannot in the face work stand writ; specific findings exonerating 40 Tex. the railroad no Jur.2d, 37, p. appel causing plain any negligence proximately 502. We sustain error, Robbins, points lant’s related injuries. Thompson and we hold In tiff’s that the jerk sudden (1957), under the facts without supporting proof, Supreme posi cannot form the basis Texas Court reaffirmed liability brought of Missouri Pacific. an suit tion where F.E.L.A. court, Rules of a Texas state Texas Appellant complains that the three remain control, and Rules 277 Civil Procedure thus *4 ing groups jury the of issues submitted to applicable special issues and 279 are to inquired which place work, a as to safe to to specific the of fact submission of issues furnishing employees, sufficient and fur jury 38 Tex. a in a Texas state court. See nishing equipment, sufficient gen were each Moreover, Jur.2d, 202, pp. 434-435 . issues, global they eral and and that were defeating majority the reason for the sees no specific enough comply to Texas requirement that rights of federal a law, under authority Barclay the v. C. C. specific the be of fact submitted to issues Co., Pitts Sand & Gravel 644 procedural jury law. In view under Texas ; (Tex.Sup.) Roosth & Genecov Production case, that majority of the the feels Robbins White, Inc., Co. 262 S.W. the we are the rule as to bound Texas 2d (Tex.Sup.); Fox Hotel v. Dallas issues, special and we accord submission of Tex. 240 S.W. and similar au general ingly that hold that follow case. We thority. In Great Pacific Tea Atlantic & global correctly be submit issues cannot Coleman, Co. v. (Tex.Civ. S.W.2d in jury, proper objections, ted a to the over App.), writ; no Texas & N. R. Co. v. O. case, negligence including F.E.L.A. cases. Pool, 263 (Tex.Civ.App), S.W.2d 582 no writ; and Ry. Panhandle & Santa Fe Co. v. not, however, Spe consider We do Arnold, 283 303 (Tex.Civ.App), sufficiently global cial Issue No. 3 to be ref., writ n. r. e. (on remand 305 S.W.2d general down or that it should be stricken 207), Texas Appeals Courts of Civil have special under the rule. The issue was above held that the inquiring issue a whether submitted as follows: place reasonably a place safe work is to a general impose one and is to insufficient “SPECIAL ISSUE NO. liability against a In defendant. the case of the you preponderance of find from a Do Prejean, Missouri Pacific 307 S. the Defendant Missouri evidence writ, W.2d no the con Company, on or Pacific Railroad trary to have been held the Hous seems 1963, fail- day January, the about 25th ton District). Court Appeals (First of Civil many em- as ed to the Plaintiff furnish above, The Arnold certiorari case on to ployees help Plaintiff in the work to Court, Supreme United States was reversed made the basis doing on occasion and remanded to the Amarillo Court of Civil by a been done suit as would have Appeals, recovery was allowed in exer- ordinary prudence person case, F.E.L.A. Supreme ordinary the same or care under cise Court saying: of the United States ?” similar circumstances “ * * * Federal assertion of [T]he made, rights, plainly reasonably when “We do.” whether, simply jury is not to be defeated under the name of asked practice.” 360,77 suffi- local failure to furnish S.Ct. Pacific’s help plaintiff the oc- employees L.Ed.2d 1441. cient to on question casion in was a failure to exercise The evidence is sufficient for the ordinary care under the circumstances. The finding to make a negligence on question presented real Special here suffi- Issue No. and make a to ciency jury’s Special to sustain Issue No. that the failure to help answer to that issue. testified furnish was cause whole helpers request mail supplied through part were injury or in of the he sustained. The to the railroad. He further put repeatedly, testified railroad was on notice ac requested had cording Sparks’ testimony, Pacific train- to that he needed provide master help, help because additional and that the increasing mail the mail continuously increased and the the job was becoming too difficult for one trains were He could not running might par faster. man. While it be said that the particular name the ticular performing officials of Missouri act he was at the time requests Pacific injury to whom his were made for of the had no relation whether help, properly him, more but we believe he iden- another workman helping right view, tified opposite them. The officials were on had the take the since train or hurrying required at the stations. He made one re- constant straining quest November, 1962, help up for more be- baggage to handle and line mail and placed great trip fore in January, 1963. The mail too a burden on him on baggage Rouge were from Houston Baton duties or New Or *5 business, paid per and he hour The jury five cents leans. was not in mere engaged was handling requests speculation, for He baggage. drawing but a was reasonable Pacific, help for in reaching to REA and and inference the that Missouri conclusion help Missouri Pacific’s failure to furnish a the record shows that he worked for both of er a in bringing injury was factor about the express, them. If the he re- business was ato man was in who five feet four inches quested express company. it the He through by height partly crippled and who had been required heavy bags, was to handle canvas Polio. The hurried strain of the fast and heavy pounds. some as as 100 He would lifting work on the train and the constant them, lift bags and stack and he would heavy bags injury were such an of the that drag rope by a by them in the cars a or metal type plaintiff might reasonably sustained The irregular label. and movement stopping anticipated have been as the result of failure something always of the train he to was help. question to furnish The sufficient guard against. Walker, employee Mr. an negligence jury, and we must for was general Missouri Pacific assistant mana- as jury’s findings any sustain the if there is ger, Sparks delaying told that he support Hopson to them. v. Gulf evidence train hurry and that he had and throw the Corp., 352; to Oil St. 237 S.W.2d Ry. Louis v. mail Southwestern Co. of Texas get back to the train out. Gillenwater, (Tex.Civ.App.), 284 268 S.W. ample There is evidence in the record to Sears, affirmed, 294 Roe S.W. Loud v. Sparks many that show was confronted with buck & (Tex.Civ.App.), 262 548 S.W.2d problems handling baggage in and mail and assumption no writ. The defense of of risk in getting up delivery it lined for to various is not available the defendant in a F.E.L. to stations Rouge; between Houston and U.S.C.A., Baton A. case. 45 and com see required hurry constantly to pare 157,p. 366. Tex.Jur.2d, Sec. and that reason of the increased mail and trains,

baggage speed and the of the It that must be noted federal right had the job to that the in jury’s believe was too courts have broadened the function difficult one It very for man. will be recalled F.E.L.A. little is cases so that evidence Sparks injured attempt required that in uphold jury negli an to lift to a verdict of 50-poundbag a mail it in put gence. Gulf, the stack Robinson v. Colorado & Santa Ry. Co., of mail at the car door. Fe 325 S.W.2d 432

JJ relation proximate error And in its usual the evidence on ref. cause 175. Where case, conflicting, applicable ship sense servant is not F.E.L.A. of master jury. being test caused be submitted whether the issue should Sherman, (Tex. Rogers Esthay part whole the defendant. v. S.W.2d And Ry. Co., dismd., judg. correct. Civ.App.), v. Pac. writ 352 U.S. to the employeemay testify a witness S.Ct. 493. as L.Ed.2d Mo employment. v. Gillette fact of Gibson Appellant attacks (Tex. Transport, tor Sparks employee was an Hamer, ref.; error Civ.App.), Jake Cook Missouri Pacific. The claim is that The fact that 58. Tex. employee, paid by was an REA REA and personal for another performs services one under its The control. evidence shows that compensation carries with agreed an for express company did employ right of control presumption of the it the personnel records in its cus- were beneficiary employer of the serv by the tody. general usually were His orders alleged upon the ices, the burden is then testified, given by plaintiff REA. the relation of mas employer to show that however, joint baggageman that he was a did not exist. Gibson ter servant and messenger, handling REA express for Tay Inc., supra; Transport, Motor Gillette baggage mail and Pacific. Warner, Tex. lor H. B. & testimony This was never refuted S.W. railroad, any nor produced which tended that Sparks to show was not called as witness under right the railroad’s of control manager Huffman, general H. assistant D. handling of railroad mail. baggage and U.S. Pacific, District, in an Gulf He baggage testified that made mail and clarify the nature of attempt further reports railroad, the railroad *6 Huffman had Mr. Sparks’ employment. employees directed his work in connection bring with to plaintiff subpoenaed been with baggage; paid mail and that he was re contractual pertaining the to him records extra handling baggage, mail and and the and Pacific lationship between Pacific, that pay the came from Missouri per matters Agency, and Railway Express paid who REA for his work. Plaintiff took Huff Mr. employment. Sparks’ directions employees taining from railroad and he stated evasive, testimony and man’s made complaints to them. He that testified were thereto pertaining any that records he seniority Railway held his with Ex- the company, the Louis of office kept St. press Agency the through of Brotherhood It is them. produce not could and Clerks, Railway Steamship, Freight Han- arrangement be there was clear that some Express dlers Employees and But union. railroad companies, but the the two tween he testified that he a Mr. Wat- answered to evidence of produce would not not or could son, general baggage agent for Missouri which contract or any such arrangement^ Pacific, and was directed and controlled and au employment Sparks’ limit might him and other railroad mat- on all officals therefore it. must thority add to We concerning ters mail and baggage. REA any agreement between that assume been of no have would and McCor See Pacific. plaintiff A benefit to the of has burden Evidence, Sec. Ray, Law of Texas proving relationship the mick & of master and serv Johnston, Central R. Co. In Illinois engaged ant and he was that in the master’s cert. de 1, 866, (1920), So. injured. 205 Ala. business when he was Galveston 654, 218, L.Ed. 310, nied, 41 S.Ct. H. & 254 U.S. Wells, S. A. Co. v. 121 Tex. 375, 564, 41 S.Ct. ; err. dismd. Tex.Jur.2d, p. S.W.2d 247 38 Sec. baggage- involving a a case Servant,” C.J.S., 65 L.Ed. “Master Sec. and Railway & Terminal In Dallas very- a case express agent, and and master Bailey, 151 Tex. bar, it said: at the case similar to 379, 385, that unavoidable ac it was held officer, that some “It cannot be doubted as an event should be defined cident railroad com- employee the agent, negligence of by the proximately caused duty em- charged the pany was un opinion, it is In our any party to it. employment arranging for the ploying or language “unavoidable necessary the to use trains —the work baggagemen for its the fac special issue if accident” in doing the time plaintiff was at which definition, if the tually the includes employee yet single not a —and up make findings facts which makes on testify on called to of the defendant was findings jury having made The defense. contract, rule or other subject, no this that the incident was upon facts which show documentary was offered negligence of one proximately by the caused question. The light trial on this to shed event, we hold that parties of the sub aspect content to rest defendant was proper. See mission the above issue testimony two on the of its case of the Glazer, 153 S.W. Wheeler v. express company, were agents who A.L.R. 2d Tex.Jur. knowledge of the busi- shown to have no 2d, 172, p. 718. express arrangement between the ness company, if company the railroad that appellant The contends was, plaintiff such there under which exces were damages awarded performing the doing the work and he was in plaintiff testified sive. baggagemaster defend- duties body his pain when he moved constant ant.” He it testified would become worse. following to work when he returned shooting ample experienced operation, believe the evidence is We hernia orig pains leg left which seemed sufficient to show post-operative Pacific, groin. a servant and that his of Missouri inate ingui per injuries indirect findings were received while he was showed a sac small struc forming defendant, extending into cord services for who nal hernia inguinal a left right control his the time. showed activities at tures. The record indirect, we hernia, which Johnston, su Illinois Cent. Railroad Co. v. both direct pushing pra; the hernia was McCamey, B. & O. R. R. Ohio take to mean that Co. *7 His testi well as outward. Cir.Dec. Master and Servant downward as C.J.S. made 179, p. that the accident mony v. Motor clear Gibson Gillette § Missouri, pain and severe Transport, supra. And see suit caused basis of this Reasor, recovering from In anguish. K. T. Co. Texas 28 Tex. & of v. mental for work operation, plaintiff was off Civ.App. hernia (Tex.Civ.App.), S.W. 332 re when he ref., months, and joint period three involving baggage- error a case of work, the strain noticed messenger. appel man and We overrule turned to leg, and that upon his left points being placed lant’s of error in this connection. perform. for him to harder the work was The court submitted unavoidable trial August quit work on Plaintiff following language: accident trial, he earned $225.00 at the time of elementary working as an per month while you preponderance “Do find from a of entitled jury The patrolman. school question the incident the differential consideration to take into negligence proximately caused month per at wages, which $200.00 any party it ?” could amount years period about four court’s $9,000.00. The trial to more than Answer: “We do.” damages Rehearing include an item of Motion for charge did not On evidence, lost unsupported by the since some properly proven. Under

wages were: BARRON, Justice. hos- in the absence of this case facts cer- bring forward Appellant’s motion brought been pital records which have not including hospital tain and medical exhibits court, inclined are not to this we forward appellant’s injuries, pertaining to records damage a remittitur. The to order- have been We granted has court. exclusively province of within the them examined each exhibit and considered Carswell, Tex. jury. Flanigan See v. in connection the record. 598, 324 835. believe the We verdict do pain charged physical trial The court considering in its the evidence is excessive in suffering

and mental the time of from appellee we de- light for most favorable trial, present the date and the cline a remittitur. The amount to order earnings reasonable cash value of the loss of damages generally is a troublesome trial. date to the date of No from vexing question. exclusionary requested con instruction was cerning the of the testicle and oth removal rehearing respectfully motion med apparently er matters included overruled. records, ical under Rule T.R.C.P. We support hold the evidence sufficient Michaels, 384

judgment. Applebaum See v. e.; ref., (Tex.Civ.App.),

S.W.2d 148 n. r. Monongahela Connecting Rail

McGraw 1960); (3rd

road F.2d Cir. Ashner,

Robinson v. Aff'd. 364 S.W.2d

(Tex.Sup.). HOWELL, Appellant, Joseph S. points We have considered all of error by appellant, and we find no reversible al., Appellees. A. WITTS et David error. Rule T.R.C.P.

No. 16997. judgment of the trial court is af- Appeals of Texas. of Civil Court firmed.

Dallas. 29, 1967. Dec. Concurring Opinion Rehearing Denied Feb. TUNKS, Chief Justice. *8 by the

I in the result reached ma concur however, am, opinion

jority. I place “safe to work” as submitted proper trial was in form. Ar court Fe

nold Panhandle & Santa 840, 1 77 S.Ct. L.Ed.2d Lindley, Co. v. Tex.Civ.

Continental Oil e.;

App., ref. n. r. Mis Prejean, Railroad Tex.

souri-Pacific history.

Civ.App., 307 S.W.2d no writ