This is a suit for personal injuries sustained by Richard Thate, appellant, when, in order to avoid a falling stanchion which was used to stabilize trucks transported by the railroad, he jumped to the ground from a flatbed railroad car owned by appellee, Texas & Pacific Railway Company. Thate sought recovery on the following alternative theories: 1) strict liability under the Federal Safety Appliance Act, 45 U.S.C.A. §§ 1-43 (West 1972 & Supp.1979) and negligence, both pursuant to the Federal Employer’s Liability Act, 45 U.S.C.A. §§ 51-60 (West 1972); 2) common law negligence as to a third party, as provided in the Texas Workers’ Compеnsation Act, Tex.Rev.Civ. Stat.Ann. art. 8307, § 6a (Vernon Supp. 1980); and 3) strict liability in tort. The jury found the railroad liable under each theory, but also found Thate negligent on one ground. Accordingly, comparative negligence was assessed at 20% to Thate and 80% to the railroad. After reviewing each party’s motion for judgment, the trial court granted the railroad’s motion for judgment notwithstanding the verdict and rendered a take-nothing judgment against Thate. By his single point of error, Thate challenges that judgment. We hold that there was evidence of probative value supporting the jury’s verdict of common law negligence, and, therefore, that the trial court erred in granting judgment notwithstanding the verdict. Accordingly, we reverse and render.
On January 15,1975, Thate was employed by Texas & Pacific Motor Transport Company to load and unload trailers on flatbed railroad cars supplied by the railroad. The employees of Motor Transport, while attempting to load a trailer on a particular flatbed car, discovered that one of the stanchions would not lock in its proper position. Normally, when problems arose with the railroad cars, the practice was to contact the railroad to have the рroblem remedied. Following this practice, the railroad’s car repairman was called to repair the stanchion. A chain was used to pull the stanchion up to the proper position and when *595 the car repairman believed the stanchion had locked in that position, he advised Thate to remove the chain. When Thate complied, the stanchion fell and he was forced to jump off the car to avoid being hit. Thate’s injuries were allegedly incurred as a result of this occurrence.
In granting a judgment notwithstanding the verdict, a trial court must conclude that nо evidence of probative value exists in support of the jury’s findings. Therefore, on appeal of such a judgment, a court of civil appeals considers only admissible evidence and inferences tending to support the verdict, and disregards all evidence and inferences to the contrary.
Miller v. Bock Laundry Machine Co.,
Federal Employer’s Liability Act
Thate’s first ground for recovery was that the railroad was liable under the terms of the Federal Employer’s Liability Act, 45 U.S.C.A. §§ 51-60 (1972). The FELA is an exclusive remedy under which railroad employees can recover against their employer for on-the-job injuries resulting from the acts of their employer or other employees. Thate contends that he was entitled to sue under this act because he was a “borrowed servant” of the railroad at the time of the incident. The railroad argues that, as a matter of law, Thate was estopped from claiming he was their borrowed servant because he received benefits under the Texas Workers’ Compensation Act, Tex.Rev.Civ.Stat.Ann. art. 8307, § 6a (Vernon Supp.1980), on the representation that he was an employee of Motor Transport. After reading the cases cited by both parties, it appears that the only case directly addressing the question of whether receipt of state workers’ compensation benefits estops one from suing under FELA is
Barrera v. Roscoe, Snyder & Pacific Railway,
estopped to assert a claim against the Railroad under the FELA by reason of his having successfully prosecuted a claim under the Texas Workmen’s Compensation Act on account of the injuries involved in this case. That remedy was inconsistent with a claim under the FELA because he had to be an employee of the Equipment Corporation to collect workmen’s compensation benefits.
Id. at 462. The railroad argues that this holding should control here. Thate argues that a fact issue exists in the present case concerning whether he was an employee of the railroad. As a result, he contends that Barrera can be distinguished from the instant case because Barrera specifically admitted he was the employee of Equipment Corporation, thus precluding any issue of fact concerning whether Barrera was an employee of the railroad. We conclude that no fact issue exists in the instant case concerning whether Thate was an employee of the railroad because, by his election to represent himself as an employee of the trucking company for purposes of receiving benefits under the Texas Workers’ Compensation Act, Thate is estopped from now claiming that he was an employee of the railroad for purposes of recovering under the FELA.
In addition to the federal court’s decision in
Barrera,
we find support for the estoppel theory in decisions of Texas state courts. The railroad does not indicate on which theory of estoppel it relies. Equitable estoppel requires a showing of detrimental reliance by the party asserting the
*596
theory; no such reliance has been shown here. Judicial estoppel requires pleadings or statements made under oath; no showing has been made here that such statements were made by Thate. An additional type of estoppel, however, has been employed in Texas.
See Metroflight, Inc. v. Shaffer,
To answer this question we examine the theories under which liability is determined for the Texas Workers’ Compensation Act and the FELA. In an action to determine which of two subscribing emplоyers is liable for workers’ compensation due an employee, Texas courts have applied the borrowed servant or special employee doctrine.
1
According to this doctrine the injured worker is held to be the employee of the employer who had the right of control over the details of the work at the time of the injury, and that employer’s workers’ compensation insurer is liable for the statutory benefits due.
2
E. g., Associated Indemnity Co. v. Hartford Accident & Indemnity Co.,
Common Law Negligence
We next consider Thate’s theory of recovery based on common law negligence. Special issues thirty-seven through forty in *597 quire whether the rаilroad’s car repairman advised Thate that the stanchion was locked when it was not, whether Thate relied on that statement, and whether such an act was negligence, proximately causing his injuries. 3 In support of these findings is testimony that the car repairman told Thate to take the chain off the stanchion, that the repairman said the stanchion was locked, and that Thate relied on that statement. Other testimony indicated that the repairman was in a position to inspect the locking mechanism or the indicator pins, which protruded until the stanchion locked. This testimony did not indicate, though, whether such an inspection had been made.
This testimony constitutes some evidence to support the jury’s finding that the repairman told Thate that the stanchion was locked. The railroad contends, however, that the jury’s finding that its repairman acted negligently in making that statement is not supported by the evidence. To determine whether this contention is correct, we must decide under what facts the making of such a statement would be negligence. The testimony showed that the railroad’s repairman was called to the scene because the emplоyees of Motor Transport were having difficulty locking the stanchion in an upright position. There is evidence that when this type of problem exists, a proper inspection must be made to determine if the stanchion is locked before an individual in the position Thate was in is told to release the chain holding the stanchion upright.
In other words, an individual must have a reasonable belief, based on a proper inspection, that the stanchion is locked, before so advising a party in a potentially dangerous position. The evidence indicates two methods of inspеction exist: 1) viewing the locking mechanism, or 2) viewing the indicator pins. Additionally, as the stanchion is being pulled up, a worker can sometimes determine whether it is locked by listening for the sound of the locking mechanism falling into place. Any one of these methods will indicate whether a stanchion is locked. Since the stanchion was not locked when the railroad’s car repairman said it was, the jury was justified in concluding that an inspection had not been made or if one had been made, the repairman ignored the results of it. In either event, no basis existed for a reasonable bеlief that the stanchion was locked.
The railroad argues that testimony exists in the record to the effect that the indicator pins may break off and therefore not protrude. Thus, an inspection of them would indicate that the stanchion is locked when it actually is not. The railroad insists that if this was the situation, the car repairman could reasonably have believed that the stanchion was locked, and the making of his statement to Thate would not have been negligence. There was no proof, however, that both indicator pins were in fact broken off. This argument requires а presumption that the indicator pins were not in proper working order. In our view, any presumption in this respect should be the other way. In the ordinary course of things, mechanical devices operate as intended most of the time. The burden to show that a normal inspection would not have revealed the crucial information should be on the defendant railroad.
See Seinsheimer
v.
Burkhart,
The railroad further disputes this conclusion by relying on a quotation from
Texas Sling Co. v. Emanuel,
It is one thing to imply negligence generally from the happening of an event, but quite another thing, when the defect in an instrumentality is unknown, to infer that the cause of the unknown defect would have been discovered hаd an inspection been made. In attempting to construct a bridge with these presumptions having no factual basis, the argument seems to run as follows: We do not know the specific cause of the event, but we assume that it was negligent in nature because the resulting event or accident would not have occurred in the absence of negligence and then, having thus established negligence, we supply the previously unknown cause by the simple assumption that there being no other explanation, we will simply infer that the unknown defect would have been discovered had an inspеction been made.
Id. at 540-41. In Texas Sling a presumption was required that had an inspection been made, it would have revealed an unknown defect which caused an accident six weeks later. Our case is distinguishable because the testimony indicates that had an inspection been made, the fact that the stanchion was not locked would normally have been evident. No presumption “that the unknown defect Would have been discovered had an inspection been made” is required. Since the record contains evidence in support of the jury’s findings on these issues, the trial cоurt erred in entering judgment notwithstanding the verdict.
Strict Liability in Tort
Thate’s third theory of recovery is strict liability in tort. This theory must be considered because of the jury’s finding of comparative negligence, which will reduce the amount of recovery if the only theory of recovery is common law negligence.
See
Restatement (Second) of Torts § 402A (1966). Thate contends that a bailment was created when the railroad supplied Motor Transport with railroad cars which were in or intended for interstate commerce. Thate contends that this situation comes within the holding stated in
Rourke v. Garza,
Further, Thate contends that this fact situation established a bailment to which strict liability in tort applies. Our supreme court, expanding on its decision in
Rourke,
recently indicated its unwillingness to extend strict liability in tort to bailment transactions comparable to that involved here.
Armstrong Rubber Co. v. Urquidez,
*599
Although the instant case is distinguishable from Urquidez in that the railroad is not the manufacturer of the allеgedly defective product, we conclude that this distinction is not relevant here and that Urquidez controls this case. In analyzing several out-of-state decisions in which strict liability in tort was extended to bailment transactions, the supreme court in Urquidez concluded that each case concerned a bailment incident to the sale of a product or service to the plaintiff, and consequently, the products provided were in the stream of commerce. The court then proceeded to distinguish these commercial transactions, in which strict liability in tort is extended, from industrial trаnsactions, in which it is not. We hold that the bailment in the instant case was not incident to the sale of a product or service, that the railroad never released the railroad car to an ordinary user or consumer within the meaning of the Restatement, and therefore, that the theory of strict liability in tort should not have been applied to this industrial transaction. Accordingly, Thate is not entitled to recover under the theory of strict liability in tort.
Election
The railroad also contends that Thate is estopped from appealing on all three theories of recovery because the FELA theory, being an exclusive remedy for employees of the railroad, is inconsistent with the other two theories of recovery. Since the doctrine of election of remedies requires election between inconsistent theories, the railroad argues that Thate should have made that election, at the latest, in his motion for judgment and therefore, can appeal only on either the FELA theory or the common law theories, but not both.
Manning v. Christian,
Additionally, the railroad contends that Thate has in fact made an election to pursue only the FELA claims because he listed those claims first in his petition and in his motion for judgment. We find no authority to support this contention. The order in which a party lists its alternative theories of recovery, even if they be inconsistent thеories does not indicate a preference to proceed only with the first listed theory, absent an express statement to that effect.
The railroad’s second reason for contending that Thate elected the FELA claims is that his motion for judgment necessarily affirmed all the findings of the jury which included a finding that he was a borrowed servant of the railroad, thus limiting his recovery to theories consistent with that finding. We know of no such rule. We conclude that if Thate was required to *600 make an election during the trial, the railroad waived its right to appeal on this ground by failing to demand or move for such an election prior to judgment.
Crosspoints
The railroad’s first crosspoint deals with an alleged conflict in the jury’s findings to negligence special issues submitted under the FELA theory of recovery. Since we hold that appellant has no cause of action under this theory of recovery, we need not address this crosspoint.
The railroad next attacks the trial court’s inclusion of the following instruction with the special issue on damages: “Do not reduce the amount in your answer because of any aggravation of the original injury, if the acts of the injured party which aggravated thе original injury were within the course of conduct of a reasonable, prudent person under all the circumstances.” The railroad contends that submission of this instruction was prejudicial error because Thate had not pleaded aggravation. This point is controlled by the Texas Supreme Court’s decision in
Hoke v.
Poser,
In order to justify reversal, howevеr, an error must result in such a denial of the complainant’s rights as was reasonably calculated to cause and probably did cause the rendition of an improper judgment in the case. Tex.R.Civ.P. 434. As indicated above, the supreme court in Hoke held that damages due to subsequent aggravations of the original injury are properly attributed to the original injury if, when the aggravation occurs, the injured person is acting as a reasonably prudent person. Thus, damages due to such an aggravation could properly have been included in the jury’s verdict regardless of which instruction the trial court gave. Neither instruction required inclusion or exclusion of damages due to aggravation, and both instructions were proper statements of the law. Since the jury’s verdict could properly have included damages that were proximately caused by a subsequent aggravation under either Thate’s or the railroad’s instruction, and since the railroad has not shown that it was taken by surprise or otherwise harmed by Thate’s failure to plead aggravation, the trial court’s error, if any, in submitting Thate’s instruction and refusing to submit the railroad’s instruction was harmless.
The railroad next challenges the еvidence supporting the damage award for Thate’s future loss of earning capacity and future medical and hospital expenses. As to lost future income, the railroad argues that Thate’s expert failed to adequately indicate how he calculated his estimate of lost future income. The details of the calculation, however, are not required. An expert economist should set out the infor
*601
mation about the plaintiff which has been supplied to him and should testify whether he has fully considered this information in his calculations. A brief description of the method usеd to calculate the loss and the result should then be given by the economist. Ward,
The Economist in Personal Injury and Death Litigation,
Trial, November 1979, at 60, 63. Any inadequacy in the expert’s testimony should be brought out on cross-examination and, if existent, goes to the weight of his testimony.
See Webb v. Jorns,
As to future medical and hospital expenses, the railroad аrgues the verdict was erroneous since no evidence was taken on the reasonable value of medical treatment which will be required in the future. The preferred practice, in order to provide the jury with guidelines to arrive at their verdict, is to have the physician testify with reasonable professional certainty about the kind of services that will be required and the reasonable value of those services. This is particularly advantageous when the services which may be required in the future differ from those received in the past. Despite these preferred рractices, however, the only requirement to support a verdict on this issue is that there be evidence in the record of the reasonable value of past medical treatment and to establish the probable necessity of future medical treatment. Determination of the expense of future treatment is a matter for the jury to determine in the exercise of their sound discretion under proper instructions from the court.
City of Houston v. Moore,
The railroad also complains that the jury finding of future medical expenses exceeded the amount for which Thate pleaded, and therefore, recovery should be limited to the amount pleaded. The settled law in Texas is that a judgment must conform to the pleadings.
Socony-Vacuum Oil Co. v. Aderhold,
Conclusion
We conclude that Thate has no cause of action based on strict liability under the Federal Safety Appliance Act, based on negligence under the Federal Employer’s Liability Act, or based on strict liability in tort. Nonetheless, Thate does have a cause of action based on cоmmon law negligence. Consequently, we must reverse the trial court’s entry of judgment notwithstanding the verdict, and, since the evidence has been fully developed and the only error present in the trial court’s action was harmless, proceed to render such judgment as the trial court should have rendered. Tex.R. Civ.P. 434. Thate concedes on appeal that the jury’s finding of past medical expenses included $429.00 that was not supported by *602 the evidence. As a result, we arrive at the following figures as Thate’s damages:
Accordingly, we reverse and render judgment on the jury’s verdict as modified, with interest from April 25,1979, the date judgment was entered in the trial court.
Notes
. Parties to some suits have raised the argument that dual employment exists and thus, recovery may be had, in some form, from both employers.
See Associated Indem. Co. v. Hartford Accident & Indem. Co.,
. While a party may be the record employee of one employer and a borrowed servant of another at the same time,
Kieppe v. Prawl,
. The trial court separately submitted special issues as to each act of negligence under both the FELA and the common law theories of recovery. The submission of two sets of special issues, which are substantially the same, is a practice which should be discouraged. Not only does such submission place an undue burden on the jury, but it is likely to cause confusion and result in conflicting findings. See
Holmes v. J. C. Penney Co.,