WILSON v. TEXAS CRESOTING CO.
No. 4945.
Court of Civil Appeals of Texas, Beaumont.
April 29, 1954.
Rehearing Denied May 26, 1954.
230
ANDERSON, Justice.
Marcus & Weller, Beaumont, for appellee.
ANDERSON, Justice.
Thе parties will be referred to as in the trial court, the appellant, Elvin Wilson, as plaintiff, and the appellee, Texas Cresoting Company, as defendant. There were other parties to the suit, but it is not necessary that further notice be taken of them.
The plaintiff sued to recover damages for personal injuries which he sustained while unloading poles from a railrоad flat-car. He alleged that the poles had been loaded in a negligent manner, and that this was the proximate cause of his injuries. The defendant was alleged to have been the loader and shipper of the poles. Trial to a jury resulted in a verdict in favor of the defendant, and in a judgment that the plaintiff take nothing by his suit.
The poles were consigned to Stone & Webster Engineering Corporation. They were to be used as piles, and were to be unloaded by the plaintiff‘s employer, Ole Peterson & Sons, Inc., a subcontractor under the consignee. The defendant was not alleged to have participated in or to have been responsible for unloading them.
There were approximately 32 poles in the particular load. Some of them were more than 70 feet long, and two flat cars were used for their transportation. The plaintiff‘s evidence was to the effect that the weight of the load was supported by one
According to the plaintiff‘s version of the manner in which the poles were secured in place, there were only twelve standards on the car (six on each side—three at each end of the car), and all of the metal bands, of which there were some six or eight, extended around all of the poles together; no bands or wires extended through the load so as to securе the poles in place by separate tiers.
Preparatory to unloading the poles with a hoisting machine, the plaintiff climbed on top of the load, and with an axe cut all of the metal bands and wires by which the poles were secured in place. This left only the standards on the sides of the car to prevent lateral motion of the poles. He then walkеd out onto the end of a pole that jutted out some three or four feet beyond the ends of the other poles, placed a sling around the ends of three of the top poles, and, while still standing or squatting on the end of the pole he had walked out on, signalled for the operator of the hoisting machine to raise the ends of the three poles. These three poles were either brought into contact with the standards on one side of the car, or else their being lifted caused the remaining poles to shift their positions and exert greater pressure on the standards, just which is not made entirely clear by the evidence. In either event, the standards on one side of the car gave away, and the poles rolled to thе ground, carrying the plaintiff with them. He was seriously injured by the fall and by being struck by the falling poles.
The plaintiff alleged that in loading the poles the defendant had been negligent (1) in placing too heavy a load on the car, (2) in failing to brace the load with a sufficient number of stakes along the sides of the car, (3) in using stakes along the sides of the car that were not strong enough to brace the load properly, (4) in only placing bands around the entire load of poles, and in not placing bands through the load between the several tiers of poles, (5) in failing to place wire across the car from stake to stake, between the tiers of poles, (6) and in failing to brace the stakes on the sides of the car by adequately wiring those on onе side of the car to those on the opposite side.
In addition to a general denial, the defendant plead contributory negligence on the part of plaintiff as a proximate cause of the latter‘s injuries, and also that in the circumstances outlined by the defendant as having attended plaintiff‘s injuries, the plaintiff was precluded from recovering judgment by the rule of law which is expressed in the maxim, “volenti non fit injuria.”
The jury found no negligence on the part of the defendant, and found that the plaintiff was guilty of negligence in each of the following respects: (1) in cutting all of the bands from around the poles without adding additional supports or braces to hold the poles in place; (2) in remaining on the poles after cutting all bands from аround them; (3) in signalling for a part of the poles to be raised while he was still standing on one or more of them; (4) in remaining on the poles after all bands had been cut from around them, when he knew or in the exercise of ordinary care should have known that the supporting stakes were not strong enough to hold the poles in place while they were being unloaded; (5) in failing to gеt off the poles while a part of them were being lifted. Each act of negligence so found was found to be a proximate cause of plaintiff‘s injuries; and such injuries were found not to have been the result of an unavoidable accident.
Eleven points of alleged error are contained in appellant‘s brief; but as we understand the brief and the record, рoints eight
Appellant‘s first five points complain of the exclusion of evidence which pertained to the same general subject matter. Points one, two, three, and five complain of the exclusion of certain testimony with reference to the manner in which other cars of similar poles, and one car in particular, had been loaded, and оf the trial court‘s refusal to permit the witnesses to compare and contrast the manner in which those cars had been loaded and the manner in which the car from which plaintiff fell had been loaded. Point four complains of the trial court‘s refusal to admit into evidence the testimony of H. J. Boswell relative to the effect, from the standpoint of the safety of persons undertaking to unload the poles, which would have been produced by separating the tiers of poles by wires or bands, and by placing more and stronger stakes along the sides of the car.
Appellant‘s sixth and seventh points are as follows:
Sixth Point
“The error of the trial court in refusing appellant the privilege of questioning appellee‘s leading witness, Carl Hillman, further about the changes in the rules, after he had testifiеd on direct examination that the rules ‘are not effective today. They have been changed.‘”
Seventh Point
“The error of the trial court in refusing to permit appellant to cross-question appellee‘s witness, Bruce Reese Brantner, relative to the witness‘s interpretation and use of rules that had been previously introduced in evidence by appellee.”
The rules referred to in the foregoing points six and seven were the loading rules of the American Association of Railroads. Those rules, as they existed at the time plaintiff received his injuries, were introduced into evidence by the defendant, and evidence was then introduced to show that the subject car had been loaded in conformity with them. The jury found that the car was loаded in conformity with the rules, and that such manner of loading was not negligence.
Under numerous counter-points, the appellee has undertaken to show that under the established rules of evidence the excluded testimony was properly excluded; that if error was committed, it was harmless because substantially the same testimony was introduced from other sources and even by the same witnesses during the course of the trial; and that if error was committed, it was harmless because the trial court erred in not granting the defendant‘s motion for an instructed verdict.
Defendant‘s motion for an instructed verdict was predicated upon the theory that as a matter of law the evidence established that the plaintiff himself had been guilty of negligence which proximately caused his injuries, and upon the theory that as a matter of law the evidence made applicable the rule of law which is expressed in the maxim, “volenti non fit injuria.”
We find it unnecessary to pass upon or to discuss these contentions of the appellee, or even to pass upon whether or not error was committed by the trial court in any of the respects charged by the appellant. Assuming, without deciding, that the trial court erred in each of the respects charged, such errors do not require a reversal of the trial court‘s judgment.
It is not necessary that we detail the testimony which appellant claims was erroneously excluded, or that we set out what he might have hoped to accomplish by further сross-examination of the witnesses mentioned in his sixth and seventh points. What we have already said makes it sufficiently clear that the excluded evidence could have been relevant only to the issues pertaining to the defendant‘s negligence, and could have had no bearing on the issues with reference to whether in doing or
No reversible error being presented, the judgment of the trial court is affirmed.
On Motion for Rehearing.
In his motion for rehearing the appellant complains that in its original opinion this court erred (1) “in making a finding that ‘points eight through eleven * * * are not insisted upon by’ the appellant,” (2) “in denying appellant‘s motion, duly verified, to supplement the record by bringing up to the Court of Civil Appeals all of the arguments of counsel to the jury,” (3) “in finding that if the trial court committed error in the respects charged by the appellant ‘such errоrs do not require a reversal of the trial court‘s judgment,‘” and (4) in holding that the errors charged by appellant “could have had no bearing on the issues with reference to whether in doing or failing to do certain things in the circumstances that actually existed the plaintiff was himself guilty of negligence which proximately caused his injuries.”
The first assignment has reference to the following stаtement in the original opinion: “* * * but as we understand the brief and the record, points eight through eleven are recognized by appellant as being without proper support in the record, and are not insisted upon by him.”
Without debating the question of whether certain statements contained in appellant‘s brief and made by counsel during oral argument justified the conclusion which is evidenced by the quoted language, we now hold that appellant‘s points eight through eleven are without proper support in the record and cannot be considered on their merits. The points pertain to what are represented to have been rulings of the trial court whereby appellant‘s counsel were unduly and improperly restricted, it is claimеd, in their arguments to the jury. The alleged rulings have not been presented by bills of exception, and do not appear in the record except as contained in appellant‘s amended motion for a new trial. It does not appear that any evidence was adduced in support of the motion for new trial. The court‘s order overruling the motion made no special mention of the assignments pertaining to rulings on the arguments of counsel; it merely overruled the motion generally. The order can in no sense be construed as a certificate by the trial court that the rulings assigned as error were actually made, nor has the trial court elsewhere certified that such rulings were made. In the absence of proof of record in some manner sanctioned by law and the rules of procedure that the rulings as claimed were in fact made, the assignments are not and have not been subject to be reviewed by us. See
We next consider appellant‘s assignment that this court erred in refusing to grant his motion to have the record supplemented by a transcript of all arguments made to the jury by counsel for both parties.
The motion, which was sworn to by one of appellant‘s attorneys, was filed on September 10, 1953. The transcript and statement of facts had been therefore filed on August 12, 1953, the time for such filing having been first extended by an order of this court for a period of thirty days from July 13, 1953. The motion represented, and it contained a copy of a letter to support the representation, that counsel for appellant had timely directed the official court reporter who reported the trial to incorporate all arguments to the jury in the statement of facts. The arguments were not so incorporated, and the motion represented that appellant‘s counsel failed to detect the omission until after the statement of facts had been approved and filed. No transcript of the arguments of counsel was tendered with the motion and none has since been tendered for filing in this court. Neither, so far as the record discloses, has such a transcript been filed or tendered for filing in the trial court. The motion рrayed that the official court reporter of the trial court be ordered by this court “to transcribe and file with the clerk of the [trial court] her transcription of all arguments to the jury of all members of counsel for both parties to this suit,” and that the clerk of the trial court be ordered “to certify and transmit to the clerk of the Court of Civil Appeals * * * all of said arguments of counsel.” The motion was contested by the appellee. By order dated September 23, 1953, this court, without setting out its reasons for so doing, overruled the motion.
Disregarding the fact that the time for filing bills of exception in the trial court had long since expired when the motion under discussion was filed; and wholly aside from the question of whether, on the ex-parte motion of one of the parties to an appeal, an appellate court has the authority under
While we feel that the original opinion makes sufficiently clear the fact that points eight through eleven in appellant‘s brief were not considered on their merits and were not taken into consideration by the court in disposing of the appeal, arguments advanced by appellant under the third and fourth assignments in his motion for rehearing leads us to state here that neither the enumerated points nor the assignments of error on which they were based were taken into consideration in disposing of
The appellant‘s motion for rehearing is overruled.